Jharkhand High Court
Gayna Hembrom vs The State Of Jharkhand on 27 January, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.1605 of 2023
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1. Gayna Hembrom, son of late Gudoi Hembrom, aged
about 50 years,
2. Santosh Rai, son of late Bahadur Rai, aged about 36
years,
Both resident of Village-Jarka, P.O. and P.S.
Dumka(M), District-Dumka, Jharkhand.
... ... Appellants
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 Appellants : Mr. Kumar Vaibhav, Advocate
For the State : Mrs. Vandana Bharti, Spl. P.P.
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th
Order No. 05/Dated 27 January, 2025
I.A. No.11958 of 2024
1. This interlocutory application has been filed under
Section 430(1) of the BNSS for suspension of sentence in
connection with order of sentence dated 23.09.2022 passed
by the learned Additional Sessions Judge-II, Dumka in
Sessions Trial No.43 of 2021 arising out of Dumka (M) P.S.
Case No.156 of 2020, by which the appellants have been
sentenced and directed to undergo rigorous imprisonment
for life under Section 302 of the Indian Penal Code with fine
of Rs.20,000/- each and in default of payment of fine,
further R.I. for two years.
2. It has been contended on behalf of the appellants
that it is a case where the place of occurrence cannot be
said to be conclusively proved, since, the Investigating
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Officer who has been examined as PW-5, has deposed in
his testimony that he has not found any blood-stained
mark in the place of occurrence.
3. Learned counsel appearing for the appellants, solely
on this ground, has submitted that the prosecution has
miserably failed in establishing the charge said to be proved
beyond all reasonable doubt and, as such, it is a fit case for
suspension of sentence.
4. While on the other hand, Mrs. Vandana Bharti,
learned Special Public Prosecutor appearing for the State
has vehemently opposed the prayer for suspension of
sentence.
5. It has been contended by the learned State counsel
that there is no inconsistency if the testimony of PW-4, the
eye witness, based upon whose testimony the judgment of
conviction is based, can be said to be there if the
prosecution version as recorded in the First Information
Report on the disclosure made by the PW-4 to her mother
will be seen.
6. It has been submitted that PW-4 remained
consistent to what she had deposed to her mother based
upon that the F.I.R. has been instituted, the deposition in
the examination-in-chief and the testimony which has been
recorded in her cross-examination.
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7. Learned State counsel, based upon the aforesaid
grounds, has submitted that since the judgment passed by
the learned trial court is based upon the testimony of PW-4
and, as such, it is not a fit case for suspension of sentence.
8. We have heard the learned counsel for the parties,
gone across the testimony of the witnesses and other
material exhibits available on the lower Court record as
also the finding recorded by the learned trial court in the
impugned order.
9. This Court, in order to appreciate the argument
advanced on behalf of the parties, has gone through the
First Information Report which has been recorded by the
wife of the deceased and mother of PW-4, who has been
considered to be an eye witness.
10. It has been reported to the police by the informant
her daughter had told her that these two appellants,
namely, Gayna Hembrom and Santosh Rai along with Niraj
Hembrom and Ruben Murmu had taken away her father to
the paddy field and when she followed her father, then after
reaching to the scene of occurrence she had seen that all
the four persons, namely, Gayna Hembrom, Santosh Rai,
Niraj Hembrom and Ruben Murmu were assaulting her
father and thereafter her father died. She returned to the
house and narrated the entire thing to her mother and
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based upon that the First Information Report has been
instituted.
11. The daughter has been examined as PW-4 on whose
version the F.I.R. has been instituted by her mother, the
informant. She has fully supported the version which she
had disclosed to her mother. It appears from the cross-
examination that therein also she remained consistent. The
fact about the commission of crime by these two appellants
along with Niraj Hembrom and Ruben Murmu has fully
been supported by the PW-4.
12. It has been pointed out by the learned State counsel
that the interlocutory application filed for suspension of
sentence by the other co-convict, namely, Ruben Murmu,
who is the appellant in Criminal Appeal (DB) No.136 of
2023, has been withdrawn, as would be evident from the
order dated 20.08.2024 passed in I.A. No.7435 of 2024 by
the Coordinate Bench.
13. We have perused the record of Criminal Appeal (DB)
No.136 of 2023 which has been placed before this Court
and found that identical allegations are there against the
present appellants as that of the co-convict Ruben Murmu
who has withdrawn the application filed for suspension of
sentence as would appear order dated 20.08.2024 passed
in I.A. No.7435 of 2024 (Criminal Appeal (DB) No.136 of
2023) by the Coordinate Bench.
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14. This Court, considering the fact that the testimony
of PW-4 cannot be said to be not reliable, rather, she
remained consistent what she had disclosed to her mother
in the examination-in-chief as also in the cross-
examination, therefore, is of the view that the argument
which has been advanced by the learned counsel for the
appellants that the trial court has wrongly considered
testimony of PW-4 considering her to the eye witness,
cannot be said to be correct.
15. This Court, considering the fact and taking into
consideration the issue that the PW-4 has fully supported
the prosecution version and, as such, is of the view that the
present application is not fit to be allowed.
16. Accordingly, the prayer for suspension of sentence
of the appellants is rejected.
17. Accordingly, I.A. No. 11958 of 2024, is hereby
dismissed.
18. 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.)
Birendra/
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