Jharkhand High Court
Holiya Mukhi vs The State Of Jharkhand on 20 April, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 194 of 2019
1. Holiya Mukhi
2. Khoon Mukhi @ Vikash Mukhi @ Vikash
3. Tika Mukhi @ Gopi @ Tika ........... Appellants
Versus
The State of Jharkhand .......Respondent.
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Appellants : Mr. Pran Pranay, Advocate
Mr. Raja Ravi Shekhar Singh, Advocate
For the Res.-State : Mr. Anup Pawan Topno, A.P.P.
For the Informant : Mr. Vikas Kumar, Advocate
: Mr. Parambir Singh Bajaj, Advocate
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th
09/Dated: 20 April, 2023
1. Reference may be made to the order dated 19th April, 2023.
2. In pursuance thereto, Mr. Prabhat Kumar, Senior Superintendent of Police, East Singhbhum, Jamshedpur and Mr. Warish Hussain, Sub-Inspector, Bistupur Police Station, East Singhbhum Jamshedpur (the I.O. of the case) are present.
3. The Senior Superintendent of Police, East Singhbhum, Jamshedpur has submitted that there is an error on the part of the deponent, who has filed the affidavit. It has been submitted that instead of furnishing updated details, the affidavit has been filed on basis of the data available but the instruction has been issued to all the concerned Investigating Officer(s) including the concerned Police Station(s) to furnish the data from the data available on the website and being cross checked by the records where the cases are pending.
4. This Court after having considered the aforesaid submission is of the view that the same is to be accepted. Accordingly, the same has been accepted.
5. The personal appearance of the aforementioned officers are dispensed with.
I.A. No.1881 of 2023
6. The instant interlocutory application has been filed on behalf of the appellant no.1, namely, Holiya Mukhi for suspension of sentence in connection with judgment of conviction and order of sentence dated 30th August, 2018 and 31st August, 2018 respectively passed by the learned Additional Sessions Judge- V, East Singhbhum, Jamshedpur in S.T. No.83 of 2017, whereby and whereunder the appellant no.1, namely, Holiya Mukhi has been convicted for the offence under Sections 148, 302/149 and 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years along with fine of Rs.1000/- for the offence under Section 148 of the I.P.C and in default of fine he shall further undergo imprisonment for one month. Further he was directed to undergo imprisonment for life along with fine of Rs.20,000/- for the offence under Sections 302/149 of the I.P.C and in default of fine he shall undergo imprisonment of three months. Further he was also directed to undergo rigorous imprisonment for five years along with fine of Rs.5,000/- for the offence under Section 27 of the Arms Act and in default of fine he shall further undergo imprisonment of two months.
7. The matter was heard on 23rd March, 2023 and on the basis of the argument advanced on behalf of the appellant that the case of the appellant stands exactly on similar footing to that of co-convict, namely, Khujli Ganesh @ Ganesh Ghosh, who has been directed to be released on bail after keeping the sentence in abeyance vide order passed by the co-ordinate Bench of this Court dated 18th February, 2019.
8. Such submission has been made on the basis of the testimony of the P.W.-7 (the informant of the case), wherein it has been deposed by him that the deceased was assaulted from the back of pistol but as per the testimony of the P.W.-6, the doctor, who had conducted the postmortem has found no injury in the back.
9. This Court after considering the aforesaid submission has called upon the State to file an affidavit in objection.
10. In terms thereof, the objection affidavit has been filed, wherein the reference of certain criminal cases shown to have been pending against the appellant no.1, namely, Holiya Mukhi, however, subsequently it has been accepted by the State that except the present case the appellant has criminal antecedent of nine cases and in six cases he has been acquitted and two cases are running for appearance and for one case he is not knowing about the pendency of the same.
11. The averment has already been made in the objection affidavit regarding the merit of the case taking the ground that the case of Khujli Ganesh @ Ganesh Ghosh as is being argued on behalf of the appellant, who has been directed to be released on bail after keeping his sentence in abeyance, cannot be said to be on identical footing to that of the case of the present appellant, namely, Holiya Mukhi.
12. It has been contended by referring to the impugned judgment and the testimony as also the order dated 18th February, 2019 passed in Cr. Appeal (D.B.) No.1320 of 2018, whereby and whereunder the then co-ordinate Bench of this Court suspended the sentence, so far as it relates to the co-convict, namely, Khujli Ganesh @ Ganesh Ghosh on the ground that he has assaulted with the butt of the pistol but the allegation against the present appellant, namely, Holiya Mukhi is that he has assaulted by firing the bullet from the pistol. It has further been contended that the case of other co-convicts, namely, Khoon Mukhi @ Vikash Mukhi @ Vikash and Jyoti Mukhi is identical to the case of the present appellant, since, they had also assaulted by firing through the pistol, as such, their prayers for bail have been rejected.
13. Mr. Raja Ravi Shekhar Singh, learned counsel appearing for the appellant in response has submitted that the case of the appellant--Holiya Mukhi is exactly similar to that of co-convict, namely, Khujli Ganesh @ Ganesh Ghosh, as such, he deserves to be released on bail after suspending the sentence.
14. We have heard the learned counsel for the parties and gone through the Lower Court Records as also the finding recorded by the learned trial court in the impugned judgment.
15. We have issued notice for inviting objection on behalf of the State as to why the sentence inflicted upon the opposite party be not kept in abeyance, so that he be released from judicial custody. Such order was passed on the basis of the submission of the learned counsel for the appellant showing his case exactly similar to that of the case of the co-convict, namely, Khujli Ganesh @ Ganesh Ghosh but we after examining the fact from the testimony available in the Lower Court Records and the impugned judgment as also order passed by the co-ordinate Bench of this Court passing order for suspension of sentence in favour of the said co-convict has found therefrom that sentence so far as it relates to co-convict, namely, Khujli Ganesh @ Ganesh Ghosh is concerned, the same was directed to be kept in abeyance on the basis of the fact that he had assaulted the deceased with the butt of the pistol. So far as the case of the present appellant is concerned, the specific material has come against him that he has assaulted by firing bullet due to which the deceased had sustained injury in the side of the back. As per the testimony of P.W.-7, as discussed in the impugned judgment, we have also corroborated the same from the testimony of the P.W.-6. We have found therefrom that reference of the injuries sustained by the appellant is under the head "(B)--Entry Wound". Altogether three injuries have been sustained which are as follows :
i. 1 cm x 0.75 cm surrounded by blackening 4 cm x 2.5 cm over outer aspect of left arm making an exit over inner aspect of the left arm. 1 cm x 1 cm and again making an entry wound 1 cm x 1 cm over left side of chest. 1 cm below axilla in same line.
ii. 2 cm x 2 cm with abraded margin over right shoulder mid line tap. iii. 1 cm x 1 cm over left side back of lower chest 7 cm left lateral to vertebral column and 29 cm below left side nape of neck margin is abraded.
16. The learned counsel for the appellant has tried to make out the case for suspension of sentence on the ground of parity. Admittedly, the co-ordinate Bench of this Court while suspending the sentence of co-convict, namely, Khujli Ganesh @ Ganesh Ghosh has considered that he has not given any bullet injury, rather he has assaulted with the butt of the pistol on the chest and abdomen of the deceased but here the specific material has come in course of the trial against the appellant that he has assaulted through bullet which hit the body of the deceased in the side of the back.
17. Learned counsel for the appellant by referring to another injury shown at B.(iii) that it cannot be said to be in the back. The question of location of the injury is not material for the purpose of suspension of sentence, since, the whole argument of the appellant for seeking suspension of sentence is by claiming parity with the case of Khujli Ganesh @ Ganesh Ghosh. However as per F.I.R., it appears that the Khujli Ganesh @ Ganesh Ghosh has assaulted through back of the pistol, hence, the case of the appellant cannot be said to be at par with the case of Khujli Ganesh @ Ganesh Ghosh. Further the co-convicts, namely, Khoon Mukhi @ Vikash Mukhi @ Vikash and Jyoti Mukhi, who have assaulted by bullet, their prayer for bails have already been rejected by a co-ordinate Bench of this Court vide orders dated 11th June, 2009 passed in I.A. No. 4064 of 2019 (in Cr. Appeal (D.B.) No.194 of 2019) and 26th March, 2019 passed in I.A. No.10207 of 2018 (in Cr. Appeal (D.B.) No.1250 of 2018) respectively.
18. This Court after taking into consideration the fact that co-convicts, who have assaulted the deceased through bullet have already been dealt with by rejecting their application for suspension of sentence and the ingredient available against the appellant is of giving bullet injury upon the body of the deceased.
19. Considering the same, this Court is of the view that the order of suspending the sentence relating to co-convict, namely, Khujli Ganesh @ Ganesh Ghosh is not applicable in the case of the present appellant.
20. Accordingly, this Court is of the considered view that this application is deserves to be rejected and the same is, hereby, rejected.
(Sujit Narayan Prasad, J.) (Subhash Chand, J.) Rohit Pandey/-