Jharkhand High Court
Jagarnath Gope @ Bhakhru Gope vs The State Of Jharkhand on 31 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.479 of 2023
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Jagarnath Gope @ Bhakhru Gope, aged about 26 years, son of Kajru
Gope, Resident of Village: Jamkho Kemte, Post Office & Police Station:
Raidih, District: Gumla.... ........ ..... ........ .... ........ 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. Mr. Gaurav, Advocate
For the Respondent : Mrs. Shweta Singh, APP
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st
08/ Dated 31 January, 2025
Per Sujit Narayan Prasad, J.
I.A. No. 183 of 2025
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 17-01-2023 and sentence dated 27-01-2023
passed by Additional Sessions Judge-IV, Gumla; in Sessions Trial Case
No. 311 of 2018, arising out of Raidih P.S. Case No. 22 of 2018, whereby
and where under the applicant/appellant has been convicted under
Sections 364 r/w 34, 302 r/w 34; 379 r/w 34 & 411 r/w u/s 34 of the IPC
and sentenced with Life Imprisonment as well as a fine of Rs. 50,000/-
for committing the offence under section 302 read with 34 of IPC, and in
default of payment of fine the appellant has been ordered to undergo
Simple Imprisonment for 18 months. The applicant/appellant has been
further sentenced to undergo Rigorous Imprisonment for 10 (ten) years
and a fine of Rs. 25,000/-for committing offence under section 364 read
with 34 of the IPC, and in default of payment of fine the appellant has
been ordered to undergo Simple Imprisonment for 12 months, and it has
also been ordered that all the sentences run concurrently and period of
detention already undergone by the appellant as under trial prisoner be set
off from above period of sentence.
Factual Matrix
2. Prosecution case in brief as per written application of informant namely
Munnu Singh dated 17.04.2018 wherein it has been stated by the
informant that on 16.04.2018 at about 20:00 hours, he was inside of his
house alongwith his family members then Jagarnath Gope @ Bhakhru
Gope came to his house with a Bhujali and asked him and his wife to come
along with him. He forced them to come outside of his house and asked
him to have ride on the motorcycle then he took his motorcycle having
registration no. JH 07B-9488. Thereafter, Jagarnath Gope took both of
them on motorcycle and rode them to Bartongri Jungle and there he tied
his hand and legs and took his wife in motorcycle. When he went away,
he managed to untie the rope and went towards Lungabasti.
3. In the morning when he returned to his house, his daughter Sabita Kumari
told him that Jagarnath Gope @ Bhakhru Gope came again in the last
night alongwith Shankar Gope in the informant's house and was
searching him. When they did not find him in the house, they took i-tell
mobile having sim no. 94xxxxxxx73 and another mobile of Carbon co.
having sim nos. 79xxxxxxx74 and 85xxxxxxx54 and they also took 700
rupees kept in his pocket. The reason of the incident is that they have
dispute with Jagarnath @ Bhakhru Gope and Shankar Gope. He further
alleged that because of previous enmity, Jagarnath Gope @ Bhakhru Gope
and Shankar Gope have abducted his wife with his motorcycle.
4. Accordingly, the police case being Raidih P.S. Case No. 22 of 2018 dated
17.04.2018 U/s 364, 379 r/w 34 of the IPC, 1860, was registered against
the present applicant/appellant and other co-accused namely Shankar
Gope. Subsequently Sections 302 r/w 34 & 411 r/w 34 of the IPC were
added and after completion of investigation, a chargesheet was submitted
against the present applicant and Shankar Gope.
5. During Sessions trial in order to substantiate the prosecution case,
prosecution has examined altogether eight witnesses 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 and co-accused have been
convicted for the offence under Sections U/s 364 r/w 34, u/s 302 r/w 34;
u/s 379 r/w 34 & u/s 411 r/w u/s 34 of the IPC and have been sentenced
as aforesaid.
6. 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
7. 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.
8. It has been contended that P.W.-5, who is informant-cum-husband of the
deceased, stated in paragraph-1 of the testimony that the applicant/
appellant came to his house and took him and his wife (deceased) on
motorcycle towards Tongri forest. But, evidence of P.W. 5 seems to be
concocted since on that time appellant was alone and how he can abduct
two people on the point of Bhujali while driving the motorcycle and took
them towards forest, and moreover P.W. 5 and his wife did not raise alarm.
9. Further, P.W. 5 has stated that somehow, he untied himself and came to
village Lunga Basti and stayed at there and next morning he reached his
house. But, in view of the evidence of P.W. 5 who is husband of the
deceased, it raised question upon his conduct, since he left the place of
occurrence leaving his wife, stayed another village whole night and next
morning he reached his house but even then, he did not inform to any
neighbour or police about the alleged kidnapping of his wife.
10. It has further been submitted that the P.W.-5 (Informant), in paragraph -
16 of his cross examination stated that he did not see alleged killing of his
wife, and no one told him about it, and he saw dead body of deceased
when he had gone with police. So, P.W.-5 is not eye witness of the alleged
occurrence and further there is no eye witness to the occurrence and, as
such, the prosecution witnesses are not reliable as all are hearsay and
interested witnesses.
11. The learned counsel for the appellant has contended that the co-accused
namely Shankar Gope upon whom there is similar allegation has already
been enlarged on bail by the Co-ordinate Bench of this Court vide order
dated 17.09.2024 passed in IA No. 8437 of 2024 in Criminal Appeal
(DB)No. 248 of 2023, therefore on the ground of parity also, the present
applicant/appellant deserve to be enlarged on bail after suspension of
sentence during pendency of the instant appeal.
12. 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
13. While, on the other hand, Mrs. Shweta Singh, learned APP appearing for
the respondent-State of Jharkhand has vehemently opposed the prayer for
suspension of sentence.
14. It has been contended by the learned APP by referring to the impugned
order of learned trial Court that the deceased Sheela Devi was last seen
with the company of Jagarnath Gope @ Bhakharu & Shankar Gope and
this fact has been substantiated by the testimonies of PW-1, PW-2, PW-3
& PW-5 and others as such in view of Section 106 Evidence Act, the
burden was caste upon accused/applicant Jagarnath Gope @ Bhakharu
Gopeto give a cogent and plausible explanation as to parting with the
deceased.
15. It has been submitted that one Hero Honda Passion Maroon & Black
colour Motorcycle having registration number JH0B789488 has been
recovered on the basis of the disclosure statement of the accused/applicant
which has been proved as Ext.P-7/PW-8.
16. Learned APP has further submitted that so far allegation against other co
convict namely Shanker Gope who is enlarged on bail is concerned there
is difference in allegation and role played by him in the alleged offence,
therefore, the principle of parity will not apply upon present applicant.
17. 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
18. 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.
19. 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
302IPC, 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.
20. Thus it is evident from the perusal of the relevant paragraphs of the
aforesaid judgment is it is apparent that while considering the bail in
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.
21. 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.
22. 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."
23. Thus, it is evident from the aforesaid judgment, that during considering
suspension of sentence which is the postconviction 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 whether the prima-facie case is made
out or not.
24. Further the learned counsel for the applicant has emphasized his argument
on the issue of parity and contended that the co-accused namely Shankar
Gope upon whom there is similar allegation has already been enlarged on
bail by the Co-ordinate Bench of this Court vide order dated 17.09.2024
passed in IA No. 8437 of 2024 in Criminal Appeal (DB)No. 248 of 2023,
therefore on the ground of parity also, the present applicant/appellant
deserve to be enlarged on bail.
25. In the aforesaid context this Court is conscious of the principle of parity,
which is to be made applicable while granting bail/ suspending sentence.
26. In needs to refer herein that the issue of parity has been dealt by the
Hon'ble Apex Court in the case of Tarun Kumar vs. Assistant Director
Directorate of Enforcement, 2023 SCC OnLine SC 1486 wherein it has
held as under:
18. The submission of learned Counsel Mr. Luthra to grant bail to
the appellant on the ground that the other co-accused who were
similarly situated as the appellant, have been granted bail, also
cannot be accepted. It may be noted that parity is not the law. While
applying the principle of parity, the Court is required to focus upon
the role attached to the accused whose application is under
consideration."
27. It is further settled connotation of law that Court cannot exercise its
powers in a capricious manner and has to consider the totality of
circumstances before granting bail and by only simply saying that another
accused has been granted bail is not sufficient to determine whether a case
for grant of bail on the basis of parity has been established. Reference in
this regard may be made to the judgment rendered by the Hon'ble Apex
Court in Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana,
(2021) 6 SCC 230 wherein it has been held as under:
"25. We are constrained to observe that the orders passed by the High
Court granting bail fail to pass muster under the law. They are oblivious
to, and innocent of, the nature and gravity of the alleged offences and to
the severity of the punishment in the event of conviction. In Neeru Yadav v.
State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3
SCC (Cri) 527], this Court has held that while applying the principle of
parity, the High Court cannot exercise its powers in a capricious manner
and has to consider the totality of circumstances before granting bail.
This Court observed : (SCC p. 515, para 17)
"17. Coming to the case at hand, it is found that when a stand was taken
that the second respondent was a history-sheeter, it was imperative on
the part of the High Court to scrutinise every aspect and not
capriciously record that the second respondent is entitled to be
admitted to bail on the ground of parity. It can be stated with absolute
certitude that it was not a case of parity and, therefore, the impugned
order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031]
clearly exposes the non-application of mind. That apart, as a matter of
fact it has been brought on record that the second respondent has been
charge-sheeted in respect of number of other heinous offences. The
High Court has failed to take note of the same. Therefore, the order has
to pave the path of extinction, for its approval by this Court would
tantamount to travesty of justice, and accordingly we set it aside."
26. Another aspect of the case which needs emphasis is the manner in
which the High Court has applied the principle of parity. By its two orders
both dated 21-12-2020 [Pravinbhai Hirabhai Koli v. State of Gujarat,
2020 SCC OnLine Guj 2986] , [Khetabhai Parbatbhai Makwana v. State
of Gujarat, 2020 SCC OnLine Guj 2988] , the High Court granted bail to
Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought with
Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22-
10-2020 [Siddhrajsinh Bhagubha Vaghela v. State of Gujarat, 2020 SCC
OnLine Guj 2985] on the ground (as the High Court recorded) that he was
"assigned similar role of armed with stick (sic)". Again, bail was granted
to Vanraj Koli (A16) on the ground that he was armed with a wooden stick
and on the ground that Pravin (A-10), Kheta (A-15) and Sidhdhrajsinh (A-
13) who were armed with sticks had been granted bail. The High Court
has evidently misunderstood the central aspect of what is meant by parity.
Parity while granting bail must focus upon the role of the accused.
Merely observing that another accused who was granted bail was armed
with a similar weapon is not sufficient to determine whether a case for the
grant of bail on the basis of parity has been established. In deciding the
aspect of parity, the role attached to the accused, their position in relation
to the incident and to the victims is of utmost importance. The High Court
has proceeded on the basis of parity on a simplistic assessment as noted
above, which again cannot pass muster under the law."
28. It is evident from the proposition laid down in the said cases that the
factual aspect governing the case of the culpability said to be committed
by one or the other, if found to be exactly the same and having taken into
consideration by the concerned Court, then only the principle of parity will
be applicable.
29. 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.
30. This Court is now adverting to the fact and testimonies of the witnesses
particularly P.W.1 and P.W.5 in order to ascertain the issue of parity in
the alleged culpability of the applicant/Appellant No.1 and co-accused
Shankar Gope who has been enlarged on bail by Co-ordinate Bench of this
Court.
31. Admittedly, in the case on hand, there is no eye witness to the occurrence
of commission of murder of Sheela Devi as such it is a case of
circumstantial evidence.
32. Further, as per the testimony of P.W.1, it is evident that the
accused/applicant came to her house and called her mother(deceased) and
father(informant) showing Bhujali and asked them to come out from the
house in threatening way and thereafter by the Motor-cycle he had taken
her mother Sheela Devi(deceased) and her father (informant) in the Jungle
situated in the back of the village.
33. The aforesaid fact has been corroborated by the other prosecution
witnesses, particularly P.W.5 who had stated in his examination -in-chief
that on 16.4.2018 at 8.30. 'O'clock at that time, he was in his house
alongwith her family then Jagarnath Gope @ Bhakhru Gope
(applicant/appellant herein) came to his house with Bhujali and asked him
and his wife to see them off to the river in his motorcycle and when he
showed his inability of riding the bike then he took his motorcycle and
made him and his wife to sit on it and rode the motorcycle towards tongri
Jungle.
34. This witness had further testified that Jagarnath Gope @ Bhakhru Gope
tore saree of his wife and tied him and his wife with it and took her wife
to somewhere else. He further deposed that he managed to untie the
fastening and went to Lunga Basti and stayed there and when he returned
to his house in the morning then it was stated to him by her daughter that
Jagarnath Gope and Shankar Gope had come to her house in search of him
and took mobiles of carbon and i-tell company make and had also taken
700 rupees from the pocket of his pant.
35. He had further testified that the dead body of his wife was found in the
same place where he had been made to sleep and he had seen marks of
injuries inflicted with Bhujali in the head and hands of his wife.
36. Further it is evident from testimony of PW-4 Dr. Ajay Kumar Bhagat,
Medical Officer of Sadar Hospital, Gumla who along with other two
doctors conducted postmortem examination on the dead body of deceased
Sheela Devi at Sadar Hospital, Gumla whose PM report is exhibited as
Ext.P-1/PW-4 that Sheela Devi(deceased) suffered injuries caused to the
deceased inflicted with one single weapon and the injuries inflicted on the
body of the deceased is sufficient enough to caused instant death. Thus,
the statement of prosecution witnesses particularly Informant (P.W.5) has
been substantiated by this witness also.
37. Thus, it is evident from the aforesaid part of testimony of the witnesses
P.W.1 and P.W.5 that prima facie the essential ingredients of abduction
for commission of alleged offence is available and the present applicant
has played major role in the alleged offence.
38. Further, from perusal of material available on record it is evident that
there is no cogent material against the co-accused namely Shankar Gope
has come on the record save and except the statement of P.W.-1 who have
stated that when father and mother was taken by the present
accused/applicant, the said co-accused (Shankar Gope) came to the house
of the informant along with the present applicant and had made an inquiry
about her father.
39. Further, in the order to determine the applicability of issue of parity this
Court has gone through order dated 17.09.2024 passed by the Co-ordinate
Bench of this Court in IA No.8437 of 2024 in Criminal Appeal(DB) No.
248 of 2023 by which the co-accused Shankar Gope upon has already
been enlarged on bail by suspension of sentence and has found that the
Co-ordinate Bench while enlarging the co-accused Shankar Gope on bail
has taken note of the testimony of P.W.1 and P.W.5, for ready reference
the relevant paragraph of the aforesaid order is being quoted as under:
"6. We have gone through the evidence of P.W.-1 and P.W.-5 after
going through the evidence, we find that the allegation is against
Jagarnath Gope @ Bhakhru Gope, who had taken the deceased and
father of the informant i.e. P.W.-5 to the forest, from where P.W.-5,
manage to escape. P.W.-5 also gave a similar statement, thus from
the statement, it is clear that this appellant was not present there."
40. Thus, it is evident from the aforesaid order that Co-ordinate Bench while
taking note of the submission of the learned counsel for the co-accused
and the testimony of P.W.1 and P.W.5 informant has enlarged the co-
accused Shankar Gope on privilege of bail by suspending of sentence and
has categorically observed that the allegation is against Jagarnath Gope
@ Bhakhru Gope, who had taken the deceased and informant to the forest,
from where informant P.W.-5, manage to escape. The Co-ordinate Bench
has further observed that P.W.-5 also gave a similar statement, thus from
the statement, it is clear that this appellant (shankar Gope) was not present
there.
41. Thus, from the aforesaid discussion it is apparent that the present applicant
namely Jagarnath Gope @ Bhakhru Gope had played instrumental role in
the alleged offence which has been substantiated by the testimony of PW.1
and P.W.5 whereas against the co-accused Shanker Gope only allegation
as per the P.W.1 that when father and mother of P.W.1 was taken by the
present accused/applicant, the said co-accused (Shankar Gope) came to
the house of the informant along with the present applicant and had made
an inquiry about her father.
42. On the basis of discussion made hereinabove and by applying the
proposition laid down for the purpose of applicability of principle of
parity, in the light of the order passed by the Co-ordinate Bench in the case
of co-accused Shankar Gope is of the view that the principle of parity will
not be applicable herein therefore it is not a fit case for suspension of
sentence.
43. This Court, after having discussed the factual and legal issues particularly
the issue of parity as per the discussion made hereinabove, is of the view
that the present interlocutory application is not fit to be allowed.
44. Accordingly, I.A. No. 183 of 2025 stands dismissed.
45. 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.
46. In view thereof, I.A. No. 183 of 2025 stands disposed of with the aforesaid
observation.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Sudhir
