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2023 DIGILAW 261 (JHR)

Sawan Modi v. State of Jharkhand

2023-02-28

ANUBHA RAWAT CHOUDHARY, APARESH KUMAR SINGH

body2023
JUDGMENT : 1. Learned counsel for the appellant has renewed the prayer for suspension of sentence of this appellant made through I.A. No. 74 of 2023. This appellant has been convicted by the impugned judgment dated 05.03.2019 passed in Sessions Trial No. 78 of 2018 by learned Additional Sessions Judge-II, Bokaro, for the offence punishable under Sections 304(B)//34 of the Penal Code, 1860 and sentenced to undergo rigorous imprisonment for ten years by the impugned order of sentence dated 05.03.2019. 2. Learned counsel for the appellant submits that marriage is of the year 2013 and the incident is of 13th November, 2017. Informant is the father, P.W. 3 and other prosecution witnesses are related witnesses i.e. P.W. 1, mother and P.W. 2 uncle of the victim and brother of the informant. He submitted that though, the medical officer has in the post mortem report (Exhibit 5), found 100% deep burn but it is a case of suicide as per the deposition of defence witnesses. No other ante-mortem injury has been found apart from the burn injury. Appellant is the husband who has remained in custody for 5 years and 3 months by now i.e. more than half of the custody against the sentence of 10 years imposed upon him. As such, he may be enlarged on bail. 3. Learned Spl. PP. and learned counsel for the informant have opposed the prayer and they submit that the appellant is the husband and death has occurred during four years of the marriage in extremely suspicious circumstances with deep burn 100% injury on the person of the deceased. Investigating Officer has also found three liters of kerosene oil in a jerkin at the place of occurrence. As such, the appellant should not be enlarged on bail. 4. We have considered the submissions of learned counsel for the parties and taken note of the materials relied upon from the lower court records including the period of the custody undergone by the appellant as on date. 5. Having regard to the totality of facts and circumstances and that the appellant had undergone custody of 5 years and 3 months i.e. more than half of the custody against the sentence of 10 years imposed upon him, we are inclined to enlarge him on bail by suspending the sentence. 5. Having regard to the totality of facts and circumstances and that the appellant had undergone custody of 5 years and 3 months i.e. more than half of the custody against the sentence of 10 years imposed upon him, we are inclined to enlarge him on bail by suspending the sentence. Accordingly, the appellant, named above, during the pendency of this appeal, shall be enlarged on bail on furnishing bail bonds of Rs. 10,000/- (Rs. Ten Thousand) with two sureties of the like amount each, to the satisfaction of learned Additional Sessions Judge-II, Bokaro, in connection with Sessions Trial No. 78 of 2018 with the condition that one of the bailors shall be the deponent of the affidavit whose U.I.D. card has been enclosed to the I.A. be sent to learned trial court for verification at the time of his release. Other bailor shall be the family member/close relative of the appellant. Appellant and his bailors shall not change their mobile numbers or address without permission of trial court and shall also submit their Aadhar Card at the time of his release. The appellant shall report to the local police station on 1st Monday of every month. In case the appellant for any genuine reason is not able to attend to the local police station on the first Monday of the said month, he should report on 2nd Monday of the said month. 6. I.A. No. 74 of 2023 stands disposed of. 7. It is found that pursuant to the order dated 27.09.2021, no affidavit showing the status of the trial against the four accused persons who are then absconding during trial have been filed by learned A.P.P. though a report has directly been sent to the court by the Investigating Officer, Barmasia O.P. on 06th August, 2022 indicating that all those accused are still absconding. We are not satisfied with the report also. As a matter of fact and an obligation of law, the Investigating Officer is supposed to apprehend the absconder accused and put them to trial following the procedure prescribed under Code of Criminal Procedure. We therefore give an outer limit for six weeks to I.O. to apprehend the absconding accused persons and file an affidavit to that effect. Matter be listed after six weeks for such compliance.