Jharkhand High Court
Uttam Jena @ Bablu Jena @ Bablu vs The State Of Jharkhand on 11 March, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. A. (DB) No. 188 of 2019
with
I.A. No. 10585 of 2023
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1.Uttam Jena @ Bablu Jena @ Bablu
2.Govind Jena @ Govindo Jena
3.Gopal Jena ... ... Appellants Versus The State of Jharkhand ... ... Respondent
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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellants : Mr. Indrajit Sinha, Advcoate Mr. Akhouri Awinash Kumar, Advocate For the Respondent : Mr. Pankaj Kumar, P.P
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th Order No. 06 : Dated 11 March, 2024 I.A. No. 10585 of 2023
1. The instant interlocutory application has been filed on behalf of appellant no. 1, namely, Uttam Jena @ Bablu Jena @ Bablu under Section 389(1) of the Cr.P.C. for suspension of sentence dated 28.01.2019 passed by the learned Additional Sessions Judge-I, Ghatshila in S.T. Case No.188 of 2016, in connection with Bahargora P.S. Case No. 89 of 2015, corresponding to G.R. Case No. 482 of 2015, whereby and whereunder, the appellants have been convicted for the offence under Sections 302 and 201 read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 10,000/- [ten thousand] each for the offence punishable under Section 302 I.P.C. read with Section 34 IPC and further sentenced to -2- undergo RI for five years and a fine of Rs. 5,000/- [five thousand] each for the offence punishable under Section 201 read with Section 34 IPC. In default of payment of fine, they shall further stand to suffer SI for six months each. Both the sentences shall run concurrently.
2. Mr. Akhouri Awinash Kumar, learned counsel for the appellant, has submitted that it is a case where the appellant no. 1, applicant herein, is absolutely innocent since it is admitted case of the prosecution that the appellant no. 1 and the deceased led 25 years of marital relationship and after that it cannot be accepted that wife will be inflicted burn injury due to which she succumbed to death. It is further contended regarding the prosecution version that there was usual quarrel in between the appellant no. 1, herein and the deceased and due to aforesaid reason the occurrence took place.
3. The submission has been made that appellant no. 1, the applicant herein, has shown his bona fide by immediately informing his brother-in-law, who resides in the nearby area i.e., at the distance of 200 meters in the same locality. The submission therefore has been made that if there was any ulterior motive then no due information could have been given by the appellant no. 1 to the brother-in-law who immediately after getting the informantion has reached to the place of cremation along with the Mukhiya. -3-
4. The ground of parity has also been taken with respect to the order passed by learned Co-ordinate Bench of Court by which, the appellant no. 2 and 3, namely, Govind Jena @ Govindo Jen and Gopal Jena have been directed to be released on bail after suspending the sentence vide order dated 02.12.2019 in I.A. No. 8353 of 2019 and the case of appellant no. 1 stands on similar footing.
5. Learned counsel for the appellant on the aforesaid ground has submitted that the appellant no. 1 may be enlarged on bail after suspending the sentence during pendency of appeal.
6. While on the other hand, Mr. Pankaj Kumar, learned Public Prosecutor, appearing for the respondent-State has vehemently opposed the prayer for suspension of sentence on the ground that appellant no. 1 being the husband has committed the offence by burning his wife pouring Kerosine Oil upon her along with his two sons, who are appellant no. 2 and 3 to the instant appeal and have been convicted and sentenced was passed against them for life imprisonment along with appellant no.1, the present applicant.
7. It has been contended that the ground as has been taken that after 25 years of marital life it is not expected from the husband to commit the commission of crime, the same cannot be said to be have substance reason being that the death admittedly took place inside the house of appellant no. -4- 1, hence in view of provision of Section 106 of the Evidence Act, the burden of proof is upon the applicant herein.
8. The submission has also been made by referring to the testimony of P.W. 6, who at the relevant point of time was the Mukhiya, and who after getting information from the brother- in-law of appellant no. 1 to whom the occurrence was communicated by the appellant no.1, had reached the place of occurrence in the night itself i.e., immediately thereafter the body was brought to the place of cremation and the body was half burnt. Thereafter the brother-in-law and Mukhiya reached to the place of cremation and after intervention of police the body was not allowed to be cremated further for the purpose of conducting medical formalities i.e., post mortem etc.
9. On the basis of aforesaid argument, learned Public Prosecutor has submitted that the said conduct of appellant no. 1 the applicant herein is also said to be ulterior since after giving information the dead body was immediately carried to the place of cremation without waiting for brother- in-law, the dead body was set on fire for cremation.
10. The submission has been made in response to the ground of parity to appellant nos. 2 and 3, who have been granted bail by suspending sentence by co-ordinate Bench of this Court, that appellant nos. 2 and 3, are the sons of deceased and appellant no. 1, the applicant herein is the -5- husband. Further submission has been made based on the testimony of P.W. 6 that co-ordinate Bench has suspended the sentence of appellant nos. 2 and 3 mainly on the ground that they were not present at the place of cremation. Hence, even on facts also case of appellant no.1 is not at par with appellant nos. 2 and 3, who have been directed to be released on bail by suspending their sentence.
11. Learned Public Prosecutor based upon the aforesaid ground has submitted that it is not a fit case where the prayer for suspension of sentence is fit to be allowed.
12. We have heard learned counsel for the parties, gone across the judgment passed by the learned trial Court, the testimony of the witnesses along with other documents as available in Trial Court Record.
13. The ground has been taken on behalf of appellant that there is no specific overt act done by appellant no.1.
14. The prosecution version as available on record is that the death of the deceased has admittedly taken place in the matrimonial house. The aforesaid fact has not been disputed, rather, the same has been admitted which this Court has gathered from the testimony of the prosecution witnesses.
15. It is further admitted fact that the dead body of the deceased was carried to the place of cremation from the matrimonial house and without waiting for any relative from his deceased-wife's side, the cremation rituals also started. -6- When P.W. 3 and 4 (informant) reached at the place of occurrence along with P.W. 6, Mukhiya the body was found half burnt.
16. It would be evident from the testimony of P.W. 6 that when they rushed to the place of cremation by that time the half of the body was burnt. The half-burnt body was seized by the police. He has further deposed that when he reached to the house where the occurrence took place he found the smell of Kerosine Oil.
17. P.W. 5-Dr. Lalan Choudhary, has found that body was packed in a sack unburnt piece of multi-colour saree pugilistic attitude left leg and hand missing and found that charred burn present all over body except right leg and foot. Antimortem dermo epidermal burn present over right leg and foot. The doctor has further deposed that on dissection brain cooked and became solid, chest and abdominal organs cooked. Lyrinx and trachea mucosa influid and contains carbon particles massively and froth stomach contains fluid under 150 ML with carbon particles uttrus small. The doctor has also deposed opining the cause of death to be burns shock the initial anti-mortem burn leassion may in course of further burning and time elapsed since death 12 to 24 hours approximately. However, in cross-examination, he has admitted that he did not feel any smell of Kerosine Oil but at -7- the same time he made it clear that such type of injuries cannot be caused by cooking.
18. Therefore, the ground as has been taken about the innocence of the applicant prima facie appears to be not correct since in view of the fact that the occurrence of burn has undertaken in the matrimonial house of the deceased, therefore, the burden of proof lies upon the applicant herein as per the requirement of law under Section 106 of the Evidence Act. Furthermore, there is no defence on that count as would be evident from the testimony of witnesses as available on trial court record.
19. Learned counsel for the appellant no. 1 has also taken the ground of parity stating that two of the appellants namely, Govind Jena @ Govindo Jena and Gopal Jena appellant nos. 2 and 3 have been granted bail by suspending sentence by the co-ordinate Bench of this Court vide order dated 02.12.2019 in I.A. No. 8353 of 2019 and the case of appellant no. 1 stands on similar footing.
20. This Court before entering into the order passed by learned Co-ordinate Bench deems it fit and proper to discuss herein the settled position of law regarding the law laid down for granting bail on the ground of parity.
21. Law is well settled that the principle of parity is to be applied if the fact of the case is exactly similar then only the principle of parity in the matter of passing order is to be -8- passed but if there is difference in between the facts then the principle of parity is not to be applied.
22. The learned counsel for the appellant no. 1 though has taken the ground of parity but in the aforesaid context it may be noted that parity is not the law, rather the principle of parity is based on the guarantee of positive equality before law enshrined under Article 14 of the Constitution of India and 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. Reference in this regard may be taken to the judgment rendered by the Hon'ble Apex Court in Tarun Kumar Versus Assistant Director Directorate of Enforcement reported in 2023 SCC OnLine SC 1486, wherein it has been 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.
24. 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 -9- the grant of bail on the basis of parity has been established. Reference in this regard may be taken from the judgment as rendered by the Hon'ble Apex Court in Ramesh Bhavan Rathod v. 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 :] , 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
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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 (A-16) 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. "
25. After discussing the law laid down with respect to parity, this Court in order to appreciate the said argument has gone through the aforesaid order passed by co-ordinate Bench of this Court. For ready reference, the same is quoted hereunder as:
"1.This interlocutory application has been filed under Section 389(1) of the Code of Criminal Procedure, on behalf of the appellant Nos.2 & 3 namely, Govind Jena @ Govindo Jena and Gopal Jena, for suspending the sentence and admitting them to bail, during the pendency of the present appeal.
2. Learned counsel for the appellants has submitted that there is no eye witness to the occurrence. P.W. - 6, i.e., the Mukhiya of the village, did not see the appellant Nos.2 & 3 when he went to the place of occurrence. It is submitted that there is material discrepancies in the testimony of the prosecution witnesses, as such, the appellant Nos.2 & 3 may be enlarged on bail, during the pendency of the appeal. 3. Learned A.P.P has opposed and submitted that the death has taken place inside the house where
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all the appellants were present. The post conduct and other circumstances clearly suggest the guilt of the appellants.
4. Heard. Considering the materials on record and the testimony of P.W. - 6, we are inclined to suspend the sentence and enlarge the appellant Nos. 2 & 3 namely, Govind Jena @ Govindo Jena and Gopal Jena on bail, during the pendency of the appeal, on their furnishing bail bond of Rs.10,000/- (Rupees Ten Thousand) each with two sureties of the like amount each to the satisfaction of learned Additional Sessions Judge - I, Ghatsila, in connection with Sessions Trial No.188 of 2016, arising out of Baharagora P.S. Case No.89 of 2015.
5. The appellant Nos.2 & 3 shall remain present before the Court when the appeal is taken up for hearing, failing which their bail shall be cancelled.
6. I.A. No.8353 of 2019 stands allowed."
26. It is evident from the aforesaid order that the main consideration was given by putting reliance upon the testimony of P.W. 6, who has not found the appellant no. 2 and 3 at the place of cremation.
27. This Court in order to appreciate the testimony of P.W. 6 has gone through the same and found that P.W. 6 has taken the name of appellant no. 1, the applicant herein who was present at the place of cremation. Therefore, primary consideration which led the learned Co-ordinate Bench in passing the order of suspension of sentence so far appellant nos. 2 and 3 are concerned is the testimony of P.W. 6, who has disclosed that appellant no. 1 was present at the place of cremation and no other villagers were present there.
28. This Court, on the basis of aforesaid premise and coming to the factual aspect as also the legal position, is of
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the view that the learned co-ordinate Bench while passing the order of sentence has primarily considered the submission of learned counsel for the appellant nos. 2 and 3, who happen to be the son of the deceased, that they were not present at the place of cremation.
29. It is evident from the impugned order that the presence of appellant no. 1 has been fully substantiated by P.W. 6 at the place of cremation.
30. This aspect of the matter is the distinguishable fact and falsifies the ground of parity, as has been taken by learned counsel for the appellant no. 1 [applicant herein].
31. Furthermore, the prosecution version with respect to the place of occurrence i.e., the house of the deceased said to be the matrimonial house and the death took place inside the house. Therefore, as per the requirement of the provision of Section 106 of the Evidence Act, i.e., the burden of proof is upon the person i.e., the appellant no. 1 herein. But there is no defense on that ground. As such, applying the principle laid down by Hon'ble Apex Court as referred hereinabove, particularly the judgment rendered in the case of Tarun Kumar (Supra), the ground of parity which has been taken by placing order dated 02.12.2019 passed in I.A. No. 8353 of 2019 by the learned Co-ordinate Bench will not be applicable in this case on the basis of consideration and the reason assigned herein.
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32. This Court, on the basis of testimony of the witnesses, has inferred by taking into consideration the conduct, that immediately after the death of the deceased who happens to be the wife of the applicant and mother of appellant nos. 2 and 3, without waiting for the morning in the night itself the appellant no. 1 reached to the place of cremation and started cremating the dead body of deceased, which cannot be said to be a bona fide conduct of accused persons.
33. This Court, considering the facts and discussions made hereinabove, is of the view that no case is made out for suspension of sentence.
34. Accordingly, the instant Interlocutory Application is dismissed.
35. It is made clear that the observation herein has been made prima facie only for the purpose of consideration of suspension of sentence and it will not prejudice the case of the appellant since the appeal is lying pending before this Court for its consideration
36. Let a copy of this order be forwarded to the appellant through Jail Superintendent.
37. The appeal will be listed in due course.
(Sujit Narayan Prasad, J.) (Arun Kumar Rai, J.) Alankar/-