Jharkhand High Court
Kumar Gaurav (Aged About 28 Years) vs The State Of Jharkhand on 21 January, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 66 of 2023
With
I.A. No. 9455 of 2024
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Kumar Gaurav (aged about 28 years), son of Late Panchu Raut,
resident of Naulakha, P.O.+P.S.-Kunda, District-Deoghar, 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. A.K. Kashyap, Sr. Advocate
Mr. Lalit Yadav, Advocate
For the Respondent : Mr. Vishwanath Roy, APP
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st
04/Dated: 21 January, 2025
I.A. No. 9455 of 2024:
1. The instant interlocutory application has been filed on behalf of
appellant under Section 430(1) of Bharatiya Nagarik Suraksha
Sanhita, 2023 for suspension of sentence passed in connection with
the judgment of conviction dated 12.12.2022 and sentence dated
13.12.2022 passed in Sessions Trial No.162 of 2017 by learned
Additional Sessions Judge-IX-cum-FTC (CAW), Deoghar, whereby
and whereunder, the appellant has been convicted under Section
304(B)/34 of the I.P.C. and sentenced to undergo rigorous
imprisonment of 10 (ten) years alongwith fine of Rs.10,000/- and in
default of fine, further directed to undergo S.I. for 06 months.
2. Mr. A.K. Kashyap, learned senior counsel appearing for the
appellant has submitted that although the prayer for suspension of
sentence has been dealt with by this Court as would be evident from
the order dated 01.03.2023 passed in I.A. No. 844 of 2023 but some
facts need to be brought to the notice of this Court and that is the
reason the second interlocutory application being I.A. No. 9455 of
2024 has been filed for suspension of sentence as the ingredient of
Section 304B is not attracted so far as it relates to the demand of
dowry said to be there soon before the incident took place.
3. The ground of custody has also been taken.
4. Mr. Vishwanath Roy, learned Additional Public Prosecutor
appearing for the respondent-State has made opposition to such
submission by taking the ground that the case of the appellant has
already been dealt with in detail by passing order on 01.03.2023 in
I.A. No. 844 of 2023.
5. It has been contended that the consideration of the prayer for
suspension of sentence since has been dealt with by taking note of
the testimonies of P.W.-2, P.W.-3, P.W.-5 and P.W.-6 who are the
close relatives of the deceased who have been considered to be
material witnesses and the point of torture and cruelty as alleged to
be done by the appellant and the death of the deceased occurred
otherwise than under normal circumstances, hence, the ground which
is being shown cannot be said to be substantial ground to be taken
into consideration once the testimonies of P.W.-2, P.W.-3, P.W.-5
and P.W.-6 will be taken into consideration which has already been
considered by this Court.
6. So far as the period of custody is concerned, the appellant has only
undergone the sentence of about three years.
7. It has been contended by making reference of the sub-paragraph of
paragraph-8 of the order dated 01.03.2023 wherein the consideration
on the ground of period of sentence already undergone has also been
taken note by making reference of the judgment passed by the
Hon'ble Apex Court in Sonadhar vs. The State of Chhattisgarh
[S.L.P (Cr.) No.529 of 2021], that the appellant has not completed
half of the sentence, as such, on that ground also there cannot be any
consideration.
8. This Court has heard the learned counsel for the parties.
9. It is evident from the order passed by this Court on 01.03.2023 in
I.A. No. 844 of 2023 wherein on consideration of the testimonies of
P.W.-2, P.W.-3, P.W.-5 and P.W.-6, the prosecution version has also
fully been supported.
10. The testimonies of these witnesses do clarify that the death took
place in the matrimonial house and there is no explanation furnished
by the appellant to that effect in the statement recorded under
Section 313 Cr.P.C. or in the cross examination part of these
witnesses that what is the reason of the death in view of the fact that
the provision of Section 113-B of the Evidence Act is applicable the
moment the place of occurrence has been admitted to be the
matrimonial house.
11. This Court since has considered the prayer for suspension of
sentence on merit vide order dated 01.03.2023 passed in I.A. No. 844
of 2023 and that order has not been assailed before the Hon'ble
Supreme Court, hence, the ground which is being taken by the
learned senior counsel that ingredient of Section 304-B is not
applicable cannot be said to be proper ground for consideration of
suspension of sentence in the light of the view already expressed by
this Court vide order dated 01.03.2023.
12. The period of custody also cannot be taken into account for the
purpose of suspension of sentence reason being that the appellant has
only remain in custody for about three years while the sentence is for
10 years.
13. This Court, taking into consideration the aforesaid fact, is of the
view that there cannot be any consideration in view of the fact that
no fresh ground has been agitated by the appellant.
14. Accordingly, the instant interlocutory application deserves to be
dismissed, as such, stands dismissed.
15. 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.)
(Navneet Kumar, J.)
Saurabh/-
