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2018 DIGILAW 390 (JHR)

Md. Abid Khan v. State of Jharkhand

2018-02-15

APARESH KUMAR SINGH, RATNAKER BHENGRA

body2018
ORDER : 1. The Appellant Md. Abid Khan in Cr. Appeal(DB)No. 14 of 2015 has made prayer for suspension of sentence through I.A. No. 5133 of 2017 while Appellant No.3, Md. Fahim @ Md. Fahim Alam in Cr. Appeal(DB)No. 884 of 2014 has also made similar prayer through I.A. No. 1246 of 2018. 2. Let it be noted at the outset that prayer for suspension of sentence on behalf of all 4 Appellants in these two appeals was considered by a coordinate Bench of this Court of which one of us(Ratnaker Bhengra, J.) was also a member, after receipt of the Lower Court Records and on merits. By order dated 18.03.2016 their prayer was rejected. 3. These two Appellants have now renewed the prayer. Appellant Md. Fahim @ Md. Fahim Alam is in custody since 23.12.2011, while appellant Md. Abid Khan is in custody since 09.04.2012. Apart from the above, learned counsel for the appellants submit that P.W.4 cannot not be taken to be an eye witness in view of her specific statement made at para 8 during her cross examination. P.W.2 and 3, though have turned hostile but in their examination-in-chief, have clearly stated that the assailants were wearing monkey caps and they could not identify them. P.W.7 has also admitted case of enmity with the accused persons. As per his version, which is not only an improvement on the initial story made out in the F.I.R, he could not have seen the assailants as he hid himself inside his house. In that case, there are no reliable witnesses on record to the incidence. The Investigating Officer also confirms the lack of any evidence of fire arms shot on any place, wall etc. on the house of the Informant, though it has been alleged that they had opened fire indiscriminately. The appellant Md. Abid has been acquitted of the charges under Section 414 of the Indian Penal Code read with Section 25(1-B), 26(1) of the Arms Act in Criminal Appeal No. 285 of 2013 by the learned Court of Additional Sessions Judge, East Singhbhum, Jamshedpur. All these materials taken together make the case of the prosecution highly doubtful. These material evidences have not been duly appreciated by the learned Court while rejecting the prayer earlier for suspension of sentence. All these materials taken together make the case of the prosecution highly doubtful. These material evidences have not been duly appreciated by the learned Court while rejecting the prayer earlier for suspension of sentence. Therefore, since the two appellants have also remained in custody for about more than 6 years in their respective cases, they may be enlarged on bail as there is no chance of appeal being heard expeditiously. 4. Learned A.P.P. has opposed the prayer for bail. He has referred to the deposition of the prosecution witness P.W.4 and P.W.7. According to learned A.P.P., the case of the prosecution taken as a whole and supported by medical evidence does clearly establish the charges against the accused / appellants herein. Earlier their prayer for bail has been rejected by this Court on merits after consideration of material evidences on the lower court records. Appellants therefore, do not deserve any privilege of suspension of sentence. 5. We have considered the submission of the parties. Appellants herein have again called upon us to re-appreciate the material evidences on record for the purpose of their suspension of sentence when this Court had occasion to go through the lower court records while rejecting their prayer by order dated 18.03.2016. The statement of P.W.7 Informant in his deposition clearly makes out the prosecution story where he alleged that these 4 appellants had came armed and started firing on both Informant and his brother Babba. Though the Informant concealed himself in the house and saved himself thereafter, but his brother could not escape the assault and was killed due to fire arm shot inflicted upon him. The medical evidence on record also shows 4 wounds of entry and 3 wounds of exit, all caused by fire arms. The Medical Officer was examined as P.W.6. The testimony of P.W.2 and 3 in the circumstances can hardly be taken to discredit the testimony of other reliable witnesses as they have turned hostile and denied having seen any appellants and reportedly seen the accused wearing monkey caps. 6. The Medical Officer was examined as P.W.6. The testimony of P.W.2 and 3 in the circumstances can hardly be taken to discredit the testimony of other reliable witnesses as they have turned hostile and denied having seen any appellants and reportedly seen the accused wearing monkey caps. 6. We also find from the statement of P.W.4 in her examination-in-chief that she had seen the assault at around 8 to 8.15 p.m. Her testimony in the cross examination can be tested at the time of final hearing of the case, however on the over all view of the matter, we do not find any reason to make a departure from what having held by this Court earlier while rejecting the prayer of the appellants herein on merits. Appellants have undergone custody for little over 6 years or slightly less than that. On that count also we are not inclined to allow the prayer for suspension of sentence of these appellants. Therefore, prayer for suspension of sentences of appellant Md. Abid Khan and Md. Fahim @ Md. Fahim Alam is rejected. Accordingly, I.A. No. 5133 of 2017 in Cr. Appeal(DB) No. 14 of 2015 and I.A. No. 1246 of 2018 in Cr. Appeal (DB)No. 884 of 2014 are also rejected. Applications rejected.