Alok Kisku vs State Of Jharkhand

I.A.No. 9859 of 2018

Heard learned Senior Counsel for the appellant and the State on the prayer for suspension of sentence made through instant interlocutory application.

Appellant stands convicted in Sessions Trial No. 08 of 2017 by the impugned judgment of conviction dated 31.08.2018 rendered by the learned Sessions Judge, Dumka for the offence punishable under Section 302 and 201 of the I.P.C and sentenced to undergo imprisonment for life with a fine of Rs.15000/- and a default sentence u/s 302 of the I.P.C and further R.I for 3 years with a fine of Rs.5000/- and a default sentence u/s 201 of the I.P.C. by the impugned order of sentence dated 05.09.2018.

Learned Senior Counsel for the appellant submits that it is a case of no evidence, neither direct nor circumstantial. It is further submitted that the victim and the appellant had entered into love marriage and their marriage was 5 years old with a child born out of it. The informant, brother -in-law of the appellant namely Pradeep Hembram(P.W.10) was annoyed with the love marriage and has falsely implicated him for the death of his own wife. In this case 14 prosecution witnesses were examined, out of which, 6 have turned hostile. It is pointed out by learned Senior Counsel for the appellant that inquest report has not been brought on record and there are contradictions in the statement of the prosecution witnesses, whether the dead body was found hanging from the tree or found inside the bush. It is submitted that P.W.8 Cyril Hembram during his cross examination has stated that there were cries heard from the house of the accused in the night of the victim and thereafter appellant had gone out to search her in the morning as she was in the habit of running away of and on. In his statement under Section 313 Cr.P.C appellant has categorically stated that the informant- brother-in-law, Pradeep Hembram was annoyed from the beginning of the marriage and had falsely implicated him. Simply because the death has occurred, as per the report of doctors Dr. Debashish Rakshit (P.W.11) Dr. Paul Hansda(P.W.12) and Dr. Lakhan Soren (P.W.13) due to asphyxia as a result of strangulation, the charge of murder as against this appellant does not stand established as none of the circumstances have been proved conclusively to lead to the only hypothesis of guilt of the appellant and no other person. Appellant was apprehended from his home by the Investigating Officer on the date on which case was instituted. Appellant is in custody since 31.07.2017. There is a minor child who needs to be taken care of. As such appellant may be enlarged on bail on grant of privilege of suspension of sentence during pendency of this appeal.

Learned Additional Public Prosecutor has opposed the prayer for bail. He submits that prosecution has been able to prove the circumstances which point out to the guilt of the appellant. It is the categorical case of the Informant Pradeep Hembram, who is brother-in-law of the appellant that after entering into love marriage with his sister, the appellant got entangled in love affair with another girl and started torturing his sister. On the night of 29.07.2016, she was beaten up and prosecution witness such as Cyril Hembram (P.W.8) has also deposed that on the night of the occurrence, he heard cries of the victim from inside the house of the appellant. The Medical Board, who conducted the post mortem examination have found the cause of death due to asphyxia as a result of strangulation. Post mortem report is marked as Ext.2 and 2 series. As such, appellant does not deserve to be enlarged on bail on grant of privilege of suspension of sentence during pendency of this appeal.

We have considered the submission of learned counsel for the appellant and the State and taken note of the aforesaid facts and circumstances including the material evidence relied from the lower court record by the rival parties. Having regard to the fact that appellant is the husband and death has occurred in unnatural circumstances due to asphyxia as a result of strangulation and there is no explanation on behalf of the appellant as to the cause of death in discharge of his onus under Section 106 of the Evidence Act, we are not inclined to enlarge the appellant on bail on grant of privilege of suspension of sentence during pendency of this appeal at this stage. Accordingly, prayer made in the instant interlocutory application is rejected. I.A. no. 9859 of 2018 stands dismissed.

The District Probation Officer, Dumka is required to ascertain the custody and welfare of the minor child of the appellant namely Ankit and submit a report within a period of 4 weeks. On submission of the report, let the matter be place before this Bench for consideration.