Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 1711 (JHR)

Anos Ekka v. State of Jharkhand

2019-09-26

AMITAV K.GUPTA, RAJESH KUMAR

body2019
JUDGMENT : I.A. No. 1745 of 2019 1. This interlocutory application has been filed under Section 389(1) of the Code of Criminal Procedure on behalf of appellant for suspension of sentence and enlarging him on bail, during the pendency of the present appeal. 2. Learned Sr. counsel appearing for the appellant has submitted that identification of the voice of the appellant and Barood Gope by PWs. 9, 10 and 11 is not tenable in law. It is submitted that PW-11 has deposed that he identified the voice of the appellant on the basis of the speech made in Hindi, whereas PW-19 had testified that conversation between the appellant and Barood Gope was in sadri language which he transcripted into Hindi. This demonstrates that the original recording in sadri language was not played before PW-11. That PW-10 has deposed in the court below that he had heard the voice on a tape recorder whereas it is admitted that the conversation was recorded and preserved in a cassette disk and not a tape. It is amply clear that PW-10 did not hear the conversation which took place in sadri language. It is submitted that the C.D. containing the conversation of the appellant and Barood Gope was sent to the Central Forensic Science Laboratory, Hyderabad for authentication of the voice of the appellant but the Forensic Science Laboratory returned the same stating that the said laboratory does not have the facility to compare/authenticate the voice recordings. 3. The prayer for bail has been opposed by the counsel for the informant. It is argued that PWs. 9, 10 and 11 in their testimony, have stated that the voice as recorded in the C.D. was that of the appellant and they recognized the voice as they were closely associated with the appellant. The voice of accused, Barood Gope, was also identified. It is submitted that the appellant had instructed Barood Gope to kill the deceased. That on 24.11.2014 Barood Gope had asked the deceased to work for the party of the appellant or face dire consequences. That the court below has considered the circumstance that in August 2014 life threat was given by this appellant to the informant at Chandi Hotel and as per C.D.R. the location of the mobile phone of the appellant and of the deceased was found near the Chandi Hotel. That the court below has considered the circumstance that in August 2014 life threat was given by this appellant to the informant at Chandi Hotel and as per C.D.R. the location of the mobile phone of the appellant and of the deceased was found near the Chandi Hotel. That on 12.08.2014, the deceased had given a letter to the then Chief Minister for providing him security due to life threats given to him by the appellant. It is submitted that the calls made through Mobile No. 7739158694 by Barood Gope to Mobile No. 9798099812 were recorded and the C.D. was prepared by PW-19, a Constable posted in the technical cell in the office of Superintendent of Police, Simdega. The court below has considered the entire circumstances and the conversation recorded and rightly held that the appellant entered into a conspiracy with Barood Gope and had caused the death of the deceased. In the recorded conversation, the appellant had given instruction to Barood Gope that the appellant’s name should not surface. 4. Heard. On perusal of the materials on record, it is evident that the voice of the appellant has been identified by PWs. 9, 10 and 11, who have deposed that they could recognise the voice of the appellant because they were well-acquainted with the appellant. The C.D. containing the recording has not been proved in accordance with Section 65B of the Indian Evidence Act. Considering that the appellant was remanded in custody for more than five years, we are inclined to suspend the sentence and enlarge the appellant on bail, on his furnishing bail bond of Rs. 10,000/- (Rupees ten thousand) with two sureties of like amount each to the satisfaction of Addl. Sessions Judge-I, Simdega, in connection with S.T. No. 29 of 2015 subject to the condition that (i) the appellant shall not leave the State of Jharkhand without prior permission of the court, (ii) he shall deposit his passport in the court below, (iii) he shall not tamper with the evidence or influence the witnesses in the ongoing cases against him, (iv) he shall report to the local police station every month. 5. With the aforesaid direction I.A. No. 1745 of 2019 is, hereby, allowed.