Jharkhand High Court
Lalu Prasad Saw @ Lalu Prasad Sahu @ Lalu ... vs The State Of Jharkhand on 19 November, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 250 of 2024
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Lalu Prasad Saw @ Lalu Prasad Sahu @ Lalu Prasad ... ... 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. Suraj Kumar, Advocate Mr. Robin Kumar, Advocate For the Respondent : Mr. Bhola Nath Ojha, APP
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th Order No. 06 : Dated 19 November, 2024 I.A. No. 9108 of 2024
1. The instant interlocutory application has been filed on behalf of appellant under Section 389(1) and (2) Cr.P.C for suspension of sentence dated 19.01.2024 passed by the learned Additional Sessions Judge-III, Lohardaga in S.T. Case No. 36 of 2022 arising out of Bagru P.S. Case No. 25 of 2021 corresponding to G.R. Case No. 74 of 2022, whereby and whereunder, the appellant has been convicted and sentenced to undergo Rigorous Imprisonment for life for the offence under Section 304-B/34 IPC and further sentenced to undergo RI for 3 years for the offence under Section 498A/34 IPC with fine of Rs. 10,000 and in default of payment of fine he shall further undergo SI for three months and the appellant was further directed to undergo RI for 2 years with fine of Rs. 10,000 for the offence U/S 4 D.P. Act and in -2- default of payment of fine to undergo SI for three months. All the sentences were directed to go concurrently.
2. It has been submitted on behalf of the appellant that he has falsely been implicated in this case. There is no material available to substantiate the allegation of demand of dowry and more so the deceased has died due to drowning in the well in which she fell.
3. Learned counsel for the appellant has submitted by placing reliance upon the order passed by the Co-ordinate Bench of this Court in Cr. Appeal (DB) No. 149 of 2024 whereby the co-convict, namely, Arjun Saw @ Arjun Sahu has been directed to be released on bail vide order dated 06.08.2024 observing that "the death is due to drowning, which is apparent from the postmortem report and there is no injury on the person of the deceased".
4. Learned counsel for the appellant, based upon the aforesaid ground has submitted that it is a fit case where sentence is to be suspended taking into consideration the fact that the death is due to drowning, which is evident from postmortem report.
5. While on the other hand, Mr. Bhola Nath Ojha, learned APP appearing for the State has vehemently opposed the prayer for suspension of sentence.
6. It has been contended that the basis of conviction is made under Section 113(B) of the Evidence Act reason being -3- that the dead body was found from the well which is inside the house that is in orchard of the house of the appellant i.e., matrimonial house of the deceased.
7. Learned counsel for the State has submitted that order passed the Co-ordinate Bench while granting bail by suspension of sentence of Arjun Saw @ Arjun Sahu in Cr. Appeal (DB) No. 149 of 2024 is distinguishable on two counts i.e., the said co-convict is the brother-in-law and further there is no consideration of provision of Section 113(B) of the Evidence Act. Further, here the appellant is the husband against whom the demand of dowry has conclusively been proved and such under Section 113(B) of the Indian Evidence Act, the onus is upon the appellant to show the bona fide the reason of death since the death has admittedly occurred in the matrimonial house of the deceased wherein the dead body has been found in the well.
8. We have heard learned counsel for the parties and gone across the finding recorded by the learned trial Court in the impugned judgment as also the testimony of the witnesses as available in the Lower Court Records as also the order passed by the Co-ordinate Bench of this Court in Cr. Appeal (DB) No. 149 of 2024 whereby the co-convict, namely, Arjun Saw @ Arjun Sahu has been directed to be released on bail vide order dated 06.08.2024.
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9. This Court in order to appreciate the argument advanced on behalf of the parties has found the imputation made against the appellant based upon the first information report that the death of the daughter of the informant has occurred on account of non-fulfillment of dowry. Hence, a case was instituted under Section 304B/34 and 498A/34 IPC as also under Section 3/ 4 of the Dowry Prohibition Act. After completion of the investigation, the charge-sheet was submitted and accordingly charged were framed against the appellant for the said offence.
10. This Court has gone through the testimonies of all the witnesses, who consistently have deposed about demand of dowry and for that reason within a period of six and half months from the date of solemnization of marriage, the deceased-wife was killed. It is also admitted fact on the basis of material available on record that the death has been shown to be caused due to drowning. The dead body was found from the well which was situated in the orchard of the matrimonial house of the deceased, i.e, the house of the appellant, who is the husband of the deceased. After taking out of the dead body from the well, the body was sent for post mortem where the cause of death has been shown to be due to drowning.
11. This Court has also considered the testimony of the doctor [PW 7], who has conducted the postmortem, who has -5- opined that the lungs were found water-logged, voluminous and completely cover the heart. On section blood stained frothy fluid streams away from cut surface. Heart right chamber full and containing dark and red blood, left chamber of heart empty.
12. The learned trial court after taking into consideration the implication of Section 113( B) of the Evidence Act as also taking into consideration the fact that the dead body was found from the well which was inside the matrimonial house of the deceased and as such has found the culpability against the appellant.
13. This Court after having referred the aforesaid has considered the order passed by the Co-ordinate Bench in Cr. Appeal (DB) No. 149 of 2024 whereby the co-convict, namely, Arjun Saw @ Arjun Sahu, who is the brother-in-law of the appellant, has been directed to be released on bail vide order dated 06.08.2024.
14. The learned counsel for the appellant has referred the observation made by the Co-ordinate Bench the death is due to drowning, which is apparent from the postmortem report and there is no injury on the person of the deceased. The aforesaid fact admittedly is not in dispute but the question herein is that consideration which has been made by the learned trial Court under Section 113(B) of the Evidence Act and taking into consideration the statutory provision since -6- the death is inside the house of the appellant and the body of the deceased was found in well which was inside the house of the appellant and as such the appellant being the husband it is onus upon him to disprove the charge imputed against him in view of provision of the Evidence Act particularly Section 106 IPC.
15. The appellant, in Cr. Appeal (DB) No. 149 of 2024, namely, Arjun Saw @ Arjun Sahu, who is the brother-in-law of the appellant, the Co-ordinate Bench did not find any material against him that the brother-in-law was living in the same house i.e., matrimonial house of the deceased.
16. Therefore, this Court based upon the material available on record, is of view that the principle of parity will not apply with case of Arun Saw @ Arjun Sahu to that of the present appellant in view of the law laid down by Hon'ble Apex Court in the case of Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230, wherein it has been laid down that the principle of parity is to be maintained but while applying the principle of parity, the factual aspect as also the fact upon which the judgment of conviction has been passed is required to be compared with. For ready reference relevant paragraph is quoted 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 -7- 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 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. -8-
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."
17. The Hon'ble Apex Court in Tarun Kumar vs. Assistant Director Directorate of Enforcement, (2023) SCC OnLine SC 1486 wherein at paragraph-18, it has been held by the Hon'ble Apex Court that parity is not the law 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.
18. This Court based upon the aforesaid discussion is of the view that the case of the present appellant is quite distinguishable to the case of Arun Saw @ Arjun Sahu, as such no parity can be given to the case of present appellant.
19. Accordingly, the present Interlocutory Application stands dismissed.
(Sujit Narayan Prasad, J.) (Navneet Kumar, J.) Alankar/