Jharkhand High Court

Uttam Kumar Rajak vs The State Of Jharkhand on 22 July, 2025

Author: Rajesh Kumar

Bench: Rajesh Kumar

   IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Cr. Appeal (DB) No. 1878 of 2023
                              ----

Uttam Kumar Rajak                   ...   ... Appellant
                           Versus
The State of Jharkhand              ...   ...    Respondent
                            -------
CORAM:         HON'BLE THE ACTING CHIEF JUSTICE
              HON'BLE MR. JUSTICE RAJESH KUMAR
                             ------

For the Appellants : Mr. Anjani Kr. Singh, Advocate For the Respondent : Mr. Shailendra Kr. Tiwari, APP

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Order No. 08: Dated 22 July, 2025 nd

Per Sujit Narayan Prasad A.C.J.

I.A. No. 6704 of 2025

1. The instant interlocutory application has been filed

under Section 430(1) of the Bhartiya Nagarik Suraksha

Sanhita, 2023 on behalf of appellant, for suspension of

sentence dated 29.09.2023 passed by the learned Additional

Sessions Judge-III, Jamtara in Sessions Trial No. 146 of

2021 arising out of Karmatanr P.S. Case No. 12 of 1997

corresponding to G.R. No.355 of 2021, whereby and

whereunder, the appellant alongwith others have been

directed to undergo Rigorous Imprisonment for life and to pay

fine of Rs. 10,000/- (Rs. Ten thousand) for the offence u/s

364A/34 of the IPC and in default of payment of fine, Simple

Imprisonment for a period of one year.

Factual Matrix

2. The case of prosecution as narrated by the informant

John Mandal in his written report, briefly stated is that in the

mid night of 10.05.2021 and 11.05.2021 around 12:50 AM

few persons started knocking his door vigorously and asked

to open the door. Due to fear, he got scared and did not open

the door, thereafter few of them went behind his house and

jumped the boundary wall of his house of the back side and

entered into his courtyard and started knocking the door on

the back side as well but they did not open the door.

3. He has further alleged that all the miscreants started

knocking front side of the door with the help of Axe and

threatened him that if door is not opened then they will cut

the door. He has alleged that upon the said threatening his

brother-in-law Samis Das who is physically disabled has

opened the door out of fear. He further alleged that as soon

as the door was opened five miscreants having pistol and Axe

in their hands entered into the house and after assembling all

the family members made them hostage and started abusing

and asking about his son.

4. He has further alleged that in the meanwhile his

daughter anyhow managed to escape to another room and

started shouting loudly and saying that in the disguise of

police thieves have entered into the house. He further alleged

that thereafter people of nearby vicinity got awaken and

started making hue and cry.

5. He further alleged that thereafter at the gun point they

took his son-in-law Sagar Kumar out of the house and

thereafter in the Bolero vehicle parked behind the road. He

alleged that altogether 7 miscreants were present at the time

of occurrence. He tried his level best to find out his son-in-

law but, in the meantime, from mobile No. 8514916536 a call

has been received on his mobile phone No. 9939131940 and

someone has threatened that if he wants well-being of his

son-in-law then he has to hand over Rs. 4 lakhs to them.

6. On the basis of written report of the informant,

Karmatanr police station has registered the instant FIR being

Karmatanr P.S. Case No. 32/2021, u/s 364A/34 of the IPC

against the above 7 unknown accused persons.

7. After completion of the investigation the charge sheet

u/s. 364A/34 of the IPC was submitted against the 7

accused persons namely (1) Rupesh Thakur, (2) Sandeep

Pandey, (3) Vishal Sharma, (4) Mritunjay Tiwari, (5) Diwakar

Tiwari, (6) Uttam Kumar Rajak (appellant herein) and (7)

Manish Sinha vide charge-sheet No. 60/2021 dated

30.07.2021.

8. Accordingly, cognizance of the offence has been taken

and case was committed to the Court of Sessions for trial. The

charges u/Ss. 364A/34 of the IPC were framed against the

other accused alongwith the present applicant.

9. The prosecution, in order to prove its case, has

adduced 8 witnesses and also exhibited documents 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 under

Section 364A/34 of the IPC and sentenced as mentioned

above.

10. The instant interlocutory application has been preferred

by the present applicant/appellant with a prayer for

suspension of sentence during pendency of the instant

appeal.

Submission of the learned counsel for the applicants:

11. Learned counsel for the applicant has submitted that

earlier the prayer for suspension of sentence of applicant has

been rejected vide order dated 16.04.2024 in I.A. No. 1031 of

2024 by the Co-ordinate Bench of this Court.

12. The prayer for suspension of sentence has been renewed

mainly on the ground of parity making submission that

similarly situated co-convict, namely, Vishal Sharma has

been granted bail by the Co-ordinate Bench of this Court in

Cr. Appeal (DB) No. 1899 of 2023 (I.A. No. 5031 of 2025) vide

order dated 06.05.2025 as also co-convicts namely Diwakar

Tiwary @ Diwakar Kumar Tiwari and Mritunjay Tiwary @

Mritunjay Kumar Tiwari @ Mritunjay Tiwari have been

granted bail in Cr. Appeal (DB) No. 1852 of 2023 (I.A. No.

5025 of 2025) and Cr. Appeal (DB) No. 1856 of 2023 vide

order dated 09.05.2025 respectively and the case of the

present applicant stands on similar footing.

13. Besides that, submission has been made that the

present applicant is in custody since 20.09.2023.

14. Learned counsel for the appellants, based upon the

aforesaid grounds, has submitted that the applicant may be

released on bail by suspending the sentence during pendency

of the instant appeal.

Submission of the learned APP for the state:

15. While on the other hand, learned APP appearing for the

State has opposed the prayer for suspension of sentence. He

had submitted that earlier the application for the suspension

of the sentence of the present applicant has been rejected on

merit vide order dated 16.04.2024, and further no fresh

ground is available herein, as such the prayer for suspension

of sentence of the applicant is not worth to be considered

again.

16. The learned APP has further submitted that prayer for

suspension of sentence of the other co-convicts namely

Rupesh Thakur and Manish Sinha has also been rejected

earlier on 16.04.2024 but the order dated 16.04.2024 has not

been considered in order dated 09.05.2025 passed by the co-

ordinate Bench by which prayer for suspension of sentence of

the co-convict namely Diwakar Tiwary @ Diwakar Kumar

Tiwari and Mritunjay Tiwary @ Mritunjay Kumar Tiwari @

Mritunjay Tiwari has been allowed.

17. So far, the parity with the Vishal Sharma is concerned it

is evident from record that although he was accused in the

same alleged offence but he has been tried separately in

Session Trial No. 146A of 2021, wherein evidence has been

placed separately, as such parity cannot be sought against

him.

18. Learned State counsel though admitted the fact that co-

convicts have been granted bail by suspending their sentence

but submission has been made that the Co-ordinate Bench in

its order 09.05.2025 did not consider the earlier rejection

order of bail passed in favour of applicant and other co-

convicts and since the rejection order of bail of applicant has

not been appreciated by the Co-ordinate Bench, therefore, the

ground of parity, as taken by learned counsel for the

petitioner has no leg to stand.

19. Learned counsel for the respondent state, therefore, has

submitted that it is not a fit case for suspension of sentence.

Analysis

20. We have heard learned counsel for the parties and

appreciated the submissions advanced by them.

21. After hearing the argument of both the parties it is

evident that the learned counsel for the appellants has

emphasized his argument on the issue of parity stating that

other appellants have been released on bail by suspension of

sentence, therefore on the ground of parity also, the present

applicant deserve to be enlarged on bail after suspension of

sentence during pendency of the instant appeal.

22. In the aforesaid context it 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."

23. 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."

24. It is evident from the proposition laid down in the said

cases that the factual aspect governing the case of 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.

25. In the backdrop of the aforesaid settled position of law

this Court is now adverting to the orders passed by the Co-

ordinate Bench by which prayer for suspension of the

sentence of the present applicant and other co-convicts

namely Rupesh Thakur and Manish Sinha have been

rejected. For ready reference, the relevant portion of order

passed by the Co-ordinate Bench is quoted as under:

Order dated 16.04.2024 passed in I.A. No.1031 of 2024 (in Cr. Appeal (D.B.) No. 1878 of 2023), I.A. No.1473 of 2024 (in Cr. Appeal (D.B.) No. 1868 of 2023) & I.A. No.704 of 2024 (in Cr. Appeal (D.B.) No. 1866 of 2023) "These interlocutory applications have been filed by the appellants, praying therein to suspend the sentence and release them on bail during pendency of these appeals.

2. The appellants have been convicted and sentenced in connection with Sessions Trial No. 146 of 2021, for the offence under Section 364(A) r/w 34 of the IPC. They have been sentenced to undergo rigorous imprisonment for life and a fine of Rs.10,000/- for offence under Section 364(A)/34 of the IPC.

3. Heard, the learned counsel for the appellants and learned A.P.P. for the State and have gone through the impugned judgment, the evidence and the Trial Court Records.

4. Learned Senior counsel submits that entire investigation has been mismanaged. Admittedly, the informant is not an eye witness which is evident from his evidence itself though he is claiming to be an eye witness. Further wife of the abducted victim was called to the police station where it is alleged that the appellants were kept confined in the lockup, which has got no evidentially value, more so in view of the fact that no TIP was conducted against these appellants. He further stated that the victim was abducted has never taken the name of any of the appellants nor did he identified any of the appellants before the trial Court. Learned senior counsel prays that the appellants be released on bail.

5. Learned counsel for the State opposes the prayer for bail and submits that one of the eye witness to the occurrence, who happens to be the wife of the abducted victim was in the house, stated in court that she had identified all these appellants as they were present. Further Investigating Officer P.W6, also found the appellants involved in this case which is evident from the evidence.

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6. After going through the record, we find that Investigating Officer is P.W 6. He arrested Rupesh Thakur (appellant in Cr. A (D.B) No.1868 of 2023). Rupesh Thakur confessed and on his pointing out from Dhaband, Nirsa in asbester room the victim was recovered and the other appellants i.e Uttam Kumar Rajak and Manish Sinha were also arrested. It has also been mentioned that other accused were also present there. Further wife of the victim who is the eye witness and was present in the house at the time of abduction, has identified the appellants.

6 Considering the aforesaid fact, prima facie we find that there is involvement of these appellants, thus we are not inclined to release the appellants on bail.

7. Accordingly, Interlocutory application stands dismissed."

26. From paragraph 6 of the aforesaid order, it is evident

that the Co-ordinate Bench while rejecting the prayer for

suspension of sentence has taken into consideration the fact

that when Investigating Officer P.W 6. arrested Rupesh

Thakur (appellant in Cr. A (D.B) No.1868 of 2023), the said

Rupesh Thakur confessed and on his pointing out the victim

was recovered from Dhaband, Nirsa in asbestos room and the

other appellants i.e Uttam Kumar Rajak (applicant herein)

and Manish Sinha were also arrested. The Co-ordinate Bench

has further taken note of the fact that the wife of the victim,

who is the eye witness and was present in the house at the

time of abduction, has identified the appellants.

27. Now, coming to the second order dated 09.05.2025 by

which co-convicts Diwakar Tiwary @ Diwakar Kumar Tiwari

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@ Diwakar Tiwari and Mritunjay Tiwary @ Mritunjay Kumar

Tiwari @ Mritunjay Tiwari have been granted bail during

pendency of the appeal. For ready reference, the said order is

quoted as under:

Order dated 09.05.2025 passed in IA (Cr.) No. 5025 of 2025 in Cr. Appeal (DB) No. 1852 of 2023 IA (Cr.) No. 5028 of 2025 in Cr. Appeal (DB) No. 1856 of 2023 "Objection filed by Mr. V.K. Vashistha, the learned Spl.P.P. in Cr. Appeal (DB) No. 1852 of 2023 at the Bar is accepted and the same be kept on record.

Heard Mr. R.S. Mazumdar, the learned senior counsel for the appellants and Mr. V.K. Vashistha, the learned Spl.P.P. as well as Mrs. Nehala Sharmin, the learned Spl.P.P. These applications have been preferred by the appellants for grant of bail during the pendency of this appeal.

The appellants have been convicted for the offences punishable under sections 364A/34 of the Indian Penal Code and have been sentenced to RI for life along with a fine of Rs.10,000/-.

It has been alleged that the son-in-law of the informant was abducted from his house.

Submission has been advanced by the learned senior counsel for the appellant that so far as the wife of the victim is concerned, who has been examined as P.W. 2, she has categorically stated that prior to the Test Identification Parade, all the accused persons were shown to her in the police station. Learned Senior counsel has also referred to the evidence of the informant who has been examined as P.W. 4, who has stated that he was not present in the house when the abduction had taken place and he had returned to his house after one hour of the incident. Learned senior counsel while referring to the evidence of the victim (P.W.5), has submitted that P.W. 5 has categorically stated that he was kept blind folded till

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his recovery by the police and even in the dock, he has not identified any of the accused. Learned Senior counsel, therefore, submits that the identification of the appellant itself is doubtful in view of the evidence of P.W. 2, P.W. 4 and P.W. 5.

Learned Spl.P.Ps. have opposed the prayer for bail of the appellants and have primarily relied upon the evidence of P.W. 4.

On consideration of the aforesaid facts it seems that the identification of the appellants is doubtful and in similar circumstances one of the co-convicts Vishal Sharma has been granted bail by this Court in Cr. Appeal (DB) No.1899 of 2023. Accordingly, during the pendency of this appeal, the appellants, named above, are directed to be released on bail on furnishing bail bond of Rs.

10,000/- (Rs. Ten Thousand) each with two sureties of the like amount each to the satisfaction of learned Additional Sessions Judge-III, Jamtara in Sessions Trial No. 146 of 2021.

I.As. stand disposed of."

28. It appears that though the co-ordinate Bench of this

Court has gone into the merit of the case in one sub-

paragraph regarding the involvement of the co-convicts but

from the finding and discussions so made in the order passed

by the Co-ordinate Bench, it is evident that the learned Co-

ordinate Bench did not consider the fact that earlier the

prayer for suspension of sentence of the present applicant

along with other co-convicts namely Rupesh Thakur and

Manish Sinha has also been rejected.

29. Thus, it is evident from the aforesaid orders that the

Co-ordinate Bench has not considered the rejection order of

the co-convicts and even the learned State Counsel has not

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brought to the knowledge of the Co-ordinate Bench that

earlier the prayer for bail of the present applicant along with

other co-convicts namely Rupesh Thakur and Manish Sinha

have been rejected vide order dated 16.04.2024 and without

considering this fact, the Co-ordinate Bench has allowed the

prayer for suspension of sentence of the co-convicts namely

Diwakar Tiwary @ Diwakar Kumar Tiwari @ Diwakar Tiwari

and Mritunjay Tiwary @ Mritunjay Kumar Tiwari @ Mritunjay

Tiwari was granted.

30. Apart from aforesaid, it needs to refer herein that

admittedly vide order dated 16.04.2024 the Co-ordinate

Bench has already dismissed the prayer for suspension of

sentence of the present applicant on merit, as such it is

considered view of this Court that no further consideration is

required on merit.

31. At this juncture it needs to refer herein that 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 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, however, in case of post-conviction

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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."

32. This Court, in view of the aforesaid on the basis of

discussion made hereinabove and by applying the proposition

laid down for the purpose of applicability of principle of

parity, is of the view that since the earlier rejection of prayer

for bail of the appellant and other co-convicts vide order

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dated 16.04.2024 has not been brought to the notice of

Co-ordinate Bench in order dated 09.05.2025, the case at

hand would not come under the ambit of giving benefit of

parity.

33. Since, on the merit, earlier the prayer for suspension of

sentence has been rejected by Co-ordinate Bench of this