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2022 DIGILAW 942 (PAT)

Saryug Mandal v. State of Bihar

2022-11-14

CHAKRADHARI SHARAN SINGH, CHANDRA PRAKASH SINGH

body2022
Chakradhari Sharan Singh, J.—These appeals have been placed before us for considering the appellants' prayer for their release on bail and suspension of sentence during the pendency of this appeal, under Section 389(1) of the Code of Criminal Procedure. 2. By the impugned judgment of conviction dated 08.09.2021 and order or sentence dated 15.09.2021, passed by the learned 8th Additional Sessions Judge, Purnea passed in Session Trial No. 129 of 2018, arising out of Rupauli Police Station Case No. 191 of 2016, the appellants have been convicted and sentenced as under:— Appellant's name Conviction under Section Sentence Imprisonment Fine (Rs.) In default of fine CRIMINAL APPEAL (DB) No.667 of 2021 Saryug Mandal 302 read with 120B/34/35 of the Indian Penal Code For life 10,000/- R.I. for six months Vinod Mandal 302 read with 120B/34/35 of the Indian Penal Code For life 10,000/- R.I. for six months Pappu Kumar Mandal 302 read with 120B/34/35 of the Indian Penal Code For life 10,000/- R.I. for six months CRIMINAL APPEAL (DB) No. 651 of 2021 Goltan Muni 302 read with 120B/34/35 of the Indian Penal Code For life 10,000/- R.I. for six months CRIMINAL APPEAL (DB) No. 715 of 2021 Naval Kishor Mandal 302 read with 120B/34/35 of the Indian Penal Code For life 10,000/- R.I. for six months 27 of the Arms Act R.I. for five years 5,000/- R.I. for three months Ravindra Mandal 302 read with 120B/34/35 of the Indian Penal Code For life 10,000/- R.I. for six months Baijnath Mandal 302 read with 120B/34/35 of the Indian Penal Code For life 10,000/- R.I. for six months CRIMINAL APPEAL (DB) No. 749 of 2021 Siya Ram Mandal 302 read with 120B/34/35 of the Indian Penal Code For life 10,000/- R.I. for six months Bal Kishor Mandal 302 read with 120B/34/35 of the Indian Penal Code For life 10,000/- R.I. for six months CRIMINAL APPEAL (DB) No. 766 of 2021 Laxmi Mandal 302 read with 120B/34/35 of the Indian Penal Code For life 10,000/- R.I. for six months Pramod Mandal 302 read with 120B/34/35 of the Indian Penal Code For life 10,000/- R.I. for six months 3. Learned counsel for the appellant in Criminal Appeal (DB) No. 715 of 2021 has, at the very outset, submitted that he does not intend to press the prayer of appellant No. 1 Naval Kishor Mandal for suspension of his sentence and his release on bail during the pendency of this appeal. The prayer on behalf of the appellant Naval Kishor Mandal for suspension of sentence is accordingly rejected. 4. Despite opportunity granted to the State to file written objection in terms of the first proviso to Section 389 (1) of the Code of Criminal Procedure (Cr.P.C. for brevity), no such written objection has been filed in Criminal Appeal (DB) No. 715 of 2021, Criminal Appeal (DB) No. 749 of 2021 and Criminal Appeal (DB) No. 766 of 2021; though such written objections have been filed in Criminal Appeal (DB) No. 651 of 2021 and Criminal Appeal (DB) No. 667 of 2021. 5. As all these appeals have been filed under Section 374(2) of the Cr.P.C. arising out of the same judgment and order passed by the learned Trial Court, which is under challenge, they have been heard together on the point of consideration of their respective prayers for suspension of sentence and their release on bail. 6. Heard learned counsel appearing on behalf of the appellants and learned Additional Public Prosecutors representing the State in different appeals. 7. It has been argued on behalf of the appellants that P.W.-6, who is the informant, alleged in the First Information Report (F.I.R. for brevity) that after hearing a sound of firing, he had rushed to the place of occurrence when he found his son lying with firearm injuries on his person. The deceased is said to have disclosed to the informant that these appellants had shot him dead. They contend that P.W.-6 in his deposition at the trial, on the other hand, disclosed a different story claiming himself to be an eye witness to the occurrence who had seen the occurrence taking place. They have further submitted that according to deposition of the informant (P.W.-6) at the trial, the victim had disclosed when he was being taken to a Hospital at Rupauli from the place of occurrence the name of appellant Naval Kishor Mandal who had fired at him. They have further submitted that according to deposition of the informant (P.W.-6) at the trial, the victim had disclosed when he was being taken to a Hospital at Rupauli from the place of occurrence the name of appellant Naval Kishor Mandal who had fired at him. They have further submitted that the evidence of the other prosecution witnesses, who are brothers of the deceased, becomes doubtful in the light of the evidence of the Investigating Officer (P.W.-10) who in his evidence denied that the statement of the victim was recorded in the hospital, contrary to evidence of P.W.-3 (Paragraph-12). It has been argued that it is evident from the evidence that there was land dispute between the family of the informant and that all the persons named in the F.I.R., which is why these appellants have been falsely implicated. 8. Learned Additional Public Prosecutors representing the State have opposed the prayer of these appellants for their suspension of their sentences and their release on bail and it has been argued that the deceased did disclose the names of these appellants to the informant which is the consistent case of the prosecution. Evidence of the eye witnesses adduced at the trial cannot be completely brushed aside as unreliable, they contend. 9. Be that as it may, it is evident from the evidence adduced at the trial that there is no evidence of any specific overt act against the appellant other than the appellant Naval Kishor Mandal of Criminal Appeal (DB) No. 715 of 2021 whose prayer for suspension of sentence and release on bail has not been pressed and has accordingly been dismissed. The patent contradictions in the evidence of the witnesses and material contradictions in the prosecution's case as disclosed in the first version contained in the F.I.R. based on the information given by the informant (P.W.-6) and his deposition at the trial claiming himself to be an eye witness makes out a case for exercise of discretion under Section 389(1) of the Cr.P.C. by directing release of the rest of the appellants on bail. 10. Accordingly, prayers of the appellants other than Naval Kishor Mandal are allowed. 10. Accordingly, prayers of the appellants other than Naval Kishor Mandal are allowed. Let the appellants, namely, Saryug Mandal, Vinod Mandal, Pappu Kumar Mandal, Goltan Muni, Ravindra Mandal, Baijnath Mandal, Siya Ram Mandal, Bal Kishor Mandal, Laxmi Mandal and Pramod Mandal be released on bail during the pendency of the appeal on furnishing bail bond of Rs. 10,000/- (Ten Thousand) with two sureties of the like amount each to the satisfaction of the learned 8th Additional Sessions Judge, Purnea in Sessions Trial No. 129 of 2018 arising out of Rupauli P.S. Case No. 191 of 2016. 11. The sentence shall remain suspended in the meanwhile.