Jharkhand High Court
Phuleshwar Yadav vs The State Of Jharkhand on 11 August, 2021
Equivalent citations: AIRONLINE 2021 JHA 1153
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 419 of 2020
1. Phuleshwar Yadav
2. Guddu Yadav --- --- Appellants
Versus
The State of Jharkhand --- --- Respondent
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CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mrs. Justice Anubha Rawat Choudhary
Through: Video Conferencing
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For the Appellants: M/s A.K. Kashyap, Sr. Advocate, Anurag Ratan, Anurag Kashyap, Advocates For the Respondent: Ms. Priya Shreshtha and Mr. Anup Pawan Topno, A.P.P
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10 / 11.08.2021 Heard learned senior counsel for the appellants Mr. A.K. Kashyap and learned A.P.P Ms. Priya Shreshtha and Mr. Anup Pawan Topno on the prayer for suspension of sentence of these appellants made through I.A. No. 3834/2020.
2. These appellants stand convicted for the offence punishable under sections 302/34 read with section 120(B) of the Indian Penal Code and section 3 of Explosive Substance Act by the impugned judgment dated 10.02.2020 passed in Sessions Trial No. 156/2017 by the Court of learned Additional Sessions Judge-I, Deoghar and both convicts have been awarded life imprisonment with a fine of Rs. 50,000/- each and default sentence each under section 302/34 read with section 120-B of the Indian Penal Code and further sentenced to undergo R.I for ten years with a fine of Rs. 10,000/- each and default sentence each under section 3 of Explosive Substance Act by the impugned order of sentence dated 24.02.2020.
3. Learned senior counsel for the appellants submits that the FIR was instituted at 6.35 am on 18.03.2017 by the wife of the deceased alleging that while the deceased along with his brother Mahendra Yadav (PW-7) and brother-in-law Rajendra Yadav (PW-8) were returning to their home near Chopa More, they were accosted by the accused Naresh Yadav with pistol in his hand and PWs-7 and 8 were told that they did not have any enmity with them. On his order, Appellant no. 1 Phuleshwar Yadav threw bomb upon the deceased, as a result of which, he fell down and in the meantime, Appellant No. 2 Guddu Yadav also threw bomb upon him. Thereafter, they fled away on two motorcycles which were standing by with two persons. Accused persons have killed her husband due to previous enmity. Learned counsel submits that the 2. inquest report has been prepared at 18.30 hours on 17.03.2017 by the Investigating Officer (PW-11). As per his version, he proceeded to the place of occurrence on receiving information of murder of a person by bomb near Mohanpur Railway Station. PW-11 in para-16 of his cross-examination has stated that at the place of occurrence, villagers and relatives of the deceased were present, but none of them told that the accused Naresh Yadav, Guddu Yadav and Phuleshwar Yadav had caused murder of the deceased by throwing bomb. Further at para-23, it is stated by him that when he reached the place of occurrence, brother of the deceased namely Mahendra Yadav (PW-7), brother- in-law of the deceased (PW-8), father of the deceased Laxmi Mahto (PW-4), wife of the deceased Manjusha Devi (PW-9) and other villagers were present. He had remained at the place of occurrence for 1-2 hours when the relatives of the deceased and villagers were also present. But during investigation, criminal background of these accused persons did not come to light. PW-7 who claims to be the eyewitnesses has also stated that he has remained at the place of occurrence for one hour till police came and his father (PW-4), wife of the deceased (PW-9) and other persons were also present along with the villagers. He also stated that Police had inquired from him at the place of occurrence and he had narrated the name of the accused persons. However, no fardbeyan or written report of PW-7 or PW-8 was recorded alleging involvement of these accused persons. Similarly, PW-8, brother-in-law of the victim who claims to be the eyewitness, has stated that he had remained at the place of occurrence for one hour along with the wife of the deceased (PW-9) and Police also inquired from them. It is submitted that the aforesaid materials brought on record during trial clearly show a false implication of the accused / appellants only for the reason that there was a dispute between the accused Naresh Yadav and the deceased who was a Para Teacher regarding some Mid-day meal scheme. It is submitted that the seizure witnesses (PWs-12 & 13) have turned hostile. Similarly, PWs-1, 2 and 3 have also turned hostile. Though FSL report (Ext.7) confirms the use of explosive and corroborates the medical evidence (Ext.2) adduced by the doctor (PW-10), but it does not lead to an inference that these two accused persons had caused his death by throwing bomb when the Investigating Officer has categorically stated that none of the relatives including PWs-7, 8 and 9 have named any accused persons when he reached the place of occurrence for preparation of inquest report. The FIR has been instituted after sufficient delay without any plausible explanation which is fatal to the 3. prosecution case. Appellant no. 1 & 2 have remained in custody since 28.03.2017 and 28.04.2017 respectively i.e. about four years and four-five months till date. Therefore, they may be enlarged on bail by suspending their sentence.
4. Learned A.P.P has opposed the prayer. It is submitted that delay of twelve hours in institution of the FIR is not fatal to the prosecution case in the light of the statement of the eyewitnesses (PWs-7 & 8) who are brother and brother-in-law of the deceased. The prosecution case of use of explosives in the murder of the deceased stands corroborated by the FSL report (Ext.7) and also post-mortem report (Ext.2) adduced by the doctor (PW-10). There is valid sanction order by the Deputy Commissioner for prosecution under the Explosive Substance Act (Ext.8). There is previous enmity between the accused Naresh Yadav and the deceased in relation to Mid-day Meal Scheme since the deceased was a Para Teacher in a school. As such, prosecution case is full proof and the appellants do not deserve the privilege of suspension of sentence, at this stage.
5. We have considered the submissions of learned counsel for the parties and taken note of the materials relied upon by them from the lower court records. On consideration of the materials on record and submissions of the parties, it appears that the Investigating Officer (PW-11) has reached to the place of occurrence at 18.30 hours on 17.03.2017 and prepared the inquest report of the deceased at 8.30 pm. As per his statement at para-16 and 23 of the deposition, though relatives of the deceased and villagers were present at the place of occurrence including PWs-7, 8, 4 and 9, but nobody mentioned the name of the accused persons. PWs-7 & 8 in their evidence also have categorically stated that they had remained at the place of occurrence till police arrive. There is no G.D entry or Station Diary entry on record either made by the PW-11 containing the information on which he proceeded to the place of occurrence for investigation. As per formal FIR, information of the occurrence has been received at 6.35 hours on 18.03.2017 from the wife of the deceased (PW-9) who claims to have learnt about the incidence from PWs-7 & 8. On consideration of totality of the facts and circumstances, we are inclined to enlarge the appellants on bail by suspending their sentence during pendency of this appeal. Accordingly, Appellants Phuleshwar Yadav and Guddu Yadav shall be released on bail, during pendency of this appeal, on furnishing bail bonds of Rs. 20,000/- (Rupees twenty thousand) each with two sureties of the like 4. amount each, to the satisfaction of learned Additional Sessions Judge-I, Deoghar in Sessions Trial No. 156/2017 with the condition that the appellants and their bailors shall not change their address or mobile nos. without permission of the learned Trial Court. I.A. No. 3834/2020 is allowed.
(Aparesh Kumar Singh, J) (Anubha Rawat Choudhary, J) Ranjeet/