Arvind Kumar Singh @ Vikram Singh And Ors vs State Of Jharkhand And Ors

These applications have been filed under Section 389(1) of the Code of Criminal Procedure, on behalf of the appellants, for suspension of sentence and grant of bail to these appellants, during the pendency of these appeals.

The appellants have been convicted for the offence under Sections 302/34 of the Indian Penal Code in connection with S. T. No. 247/2018 vide judgment and order of sentence dated 22.06.2019 passed by the Court of District and Additional Sessions Judge-II, Bokaro.

Mr. B. M. Tripathi, learned Senior counsel for the appellants (Kamlesh Singh @ Upadhyay Narayan Singh @ Upadhyay Nr. Singh and Arvind Kumar Singh @ Arving Kr. Singh) has submitted that appellants have been made accused on the basis of suspicion. Learned senior counsel for the appellants has read out the testimony of the witnesses in detail and submitted that it would be evident from the recital in the FIR, that the information was given to the informant about the incident by one Pratima Devi. It is submitted that the prosecution has not offered any plausible explanation for non-examination of Pratima Devi. It is argued that non-examination of Pratima Devi is fatal to the prosecution case and for withholding of such material witness, an adverse inference should be drawn against the prosecution case. That P.Ws. 12 & 13 are the seizure-list witnesses and they have testified that nothing was recovered in their presence and this disproves the case of the prosecution regarding recovery of the deceased's mobile phone on the basis of the confessional statement of the appellants- Kamlesh Singh @ Upadhyay Narayan Singh @ Upadhyay Nr. Singh and Arvind Kumar Singh @ Arving Kr. Singh. It has been argued that P. Ws. 1 and 6 namely, Pradeep Kumar Singh and Praveen Kumar Singh, who are brothers of the deceased, are set up witnesses by the prosecution to establish the theory of last seen, as it would be evident from the testimony of P.W. 10, i.e. the I.O., who has categorically stated that the P. Ws. 5 and 6 in their statements under Section 161 of the Cr. P. C. did not state that they had seen the appellants, entering the quarter of their brother, i.e. the deceased, on the night prior to the occurrence.

Mr. R. S. Mazumdar, learned Senior counsel for the appellant (Arvind Kumar Singh @ Vikram Singh) has argued that no confessional statement of the appellant was recorded neither any material evidence has been brought on record to show that any incriminating article was recovered from the possession of the appellant or at his instance. It is submitted that the appellant's conviction is founded on the confessional statement of co-accused Kamlesh Singh @ Upadhyay Narayan Singh @ Upadhyay Nr. Singh and Arvind Kumar Singh @ Arving Kr. Singh.

Learned A.P.P. has opposed and submitted that the mobile phone of the deceased was recovered on the basis of the confessional statement of the appellants, namely Kamlesh Singh @ Upadhyay Narayan Singh @ Upadhyay Nr. Singh and Arvind Kumar Singh @ Arving Kr. Singh and the mobile phone was identified by the informant in TIP. That as per the report of the F.S.L., Ranchi, the DNA of the hair found at the scene of the crime matches with the DNA of the appellant Arvind Kumar Singh @ Arving Kr. Singh. P. Ws. 1 and 6 have stated about the presence of the appellants on the night prior to the occurrence in the house of the deceased.

Heard. We are refraining from analyzing the evidence on record in threadbare details, as recording of any finding at this stage will be prejudicial to the case of either of the parties. It appears that on the basis of the confessional statement of appellants, namely Kamlesh Singh @ Upadhyay Narayan Singh @ Upadhyay Nr. Singh and Arvind Kumar Singh @ Arving Kr. Singh, the mobile phones of the deceased was recovered which were identified by the informant. The DNA profiling of the hair found at the scene of the crime matches the DNA of the appellant Arvind Kumar Singh @ Arving Kr. Singh. The appellant Arvind Kumar Singh @ Vikram Singh (Cr. Appeal (D.B.) No. 621 of 2019) has been convicted on the basis of confessional statement of co-appellant, therefore, we are inclined to suspend the sentence of the appellant namely Arvind Kumar Singh @ Vikram Singh, accordingly he is directed to be enlarged on bail, on his furnishing bail bond of Rs.10,000/- (Rupees Ten Thousand) with two sureties of the like amount each to the satisfaction of District and Additional Sessions Judge-II, Bokaro in connection with S. T. No. 247/2018.

The appellant shall remain present before the Court as and when the appeal is taken up for hearing, failing which his bail shall be cancelled.

Considering the materials on record, the prayer for bail of the appellants Kamlesh Singh @ Upadhyay Narayan Singh @ Upadhyay Nr. Singh and Arvind Kumar Singh @ Arving Kr. Singh (in Cr. Appeal (D.B.) Nos. 667/2019 and 747/2019) is declined.

As a result I.A. No. 8712 of 2019 (in Cr. Appeal (D.B.) No. 621 of 2019) stands allowed and I.A. No. 8755 of 2019 (in Cr. Appeal (D.B.) No. 667 of 2019) and I.A. No. 8751 of 2019 (in Cr. Appeal (D.B.) No. 747 of 2019) are, hereby, rejected.