Chamru Kumhar vs State Of Jharkhand

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

The sole appellant stands convicted for the offence punishable under Section 302 of the I.P.C by the impugned judgment of conviction dated 26.03.2018 rendered in Sessions Trial No. 399 of 2011 by the learned Court of Additional Judicial Commissioner-XVII cum FTC (CAW), Ranchi and sentenced to undergo imprisonment for life and a fine of Rs.10,000/- and further ordered to deposit Rs.50,000/- as compensation in favour of the real victims Namita Kumari and Gaju Kumhar, daughter and son of the deceased and the appellant, by fixed depositing the same under the guardianship of their maternal grandfather in a Nationalized Bank to be encashed by them on attaining the age of majority by the impugned order of sentence dated 31.03.2018.

Learned counsel for the appellant submits that death of his wife was reported to the Police by the appellant himself, which has also came in the statement of Salit Mahto (P.W.2), though F.I.R was instituted by the father of the deceased Samal Mahto (P.W.3). The Investigating Officer of the case Etwa Bhagat (P.W.8) has also stated in para 14 of his cross examination that the appellant himself informed to the Police about the incidence. It has also come in evidence that marriage was 10 years old and there were two children, one son and one daughter, borne out of the wedlock. The case of the prosecution hinges on the statement of son of the appellant and the deceased Gaju Kumar, who has been examined as P.W.5, aged 3 and ½ years at the time of incidence on 09.03.2011 and about 6 years when his deposition was recorded on 22.07.2014. Though, he has stated that he had seen the occurrence and that his mother was hanged after being throttled from the ceiling, but the Investigating Officer in his statement made at para 7 and 8 of his cross examination has categorically stated that he inquired from the minor son during investigation but since the child was only 3 ½ years old and not coherent, his statement was not recorded in the case diary. The other offspring, daughter Namita Kumari was not in the house. There are no eye witness to the occurrence. There is no allegation of dowry involved in the instant case. Appellant was all along on bail during trial and is suffering incarceration from the date of his conviction. Prosecution has not been able to attribute any motive for killing his wife who was pregnant with male twins as per the medical report, Ext.3, proved by Dr. Ajit Kumar Choudhary (P.W.7). Therefore, the appellant should be enlarged on bail during pendency of this appeal on grant of concession of suspension of sentence.

Learned Additional Public Prosecutor has opposed the prayer for bail. He submits that there is no rule of thumb that the testimony of competent and reliable witness like minor son of the deceased and the appellant could not be accepted if stated for the first time in Court inspite of the fact that he was the eye witness and competent to depose. Death has occurred due to asphyxia as a result of hanging as per Dr.Ajit Kumar Choudhary (P.W.7). The Trial Court has considered the evidence on record in proper perspective and found that appellant who is the husband, has not been able to explain the circumstances leading to the death of his wife within his specific knowledge, as required under Section 106 of the Evidence Act. Therefore, appellant does not deserve to be enlarged on bail

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. On perusal of the materials on record, it appears that the statement of the child Gaju Kumar was not recorded under Section 161 Cr.P.C by the Investigating Officer, though he tried to elicit information from him as he was not in a position to speak as he was 3 ½ years old child on the date of occurrence on 09.03.2011. The Investigating Officer Etwa Bhagat (P.W.8) has also stated in his cross examination at para 14 that as per the F.I.R, death was reported by the appellant himself. Taking all these facts and circumstances in totality, we are inclined to enlarge the appellant on bail on grant of privilege of suspension of sentence during pendency of this appeal. Accordingly, the appellant, named above, is directed to be released on bail on furnishing bail bond of Rs. 10,000/-(Ten Thousand) with two sureties of the like amount each to the satisfaction of learned Additional Judicial Commissioner-XVII cum FTC (CAW) Ranchi in connection with Sessions Trial No. 399 of 2011, subject to the condition that appellant would deposit the amount of Rs.50,000/- each in the name of both the children Namita Kumari and Gaju Kumar in a Nationalized Bank to be kept in fixed deposit till they attain majority. Appellant and his bailors would not change their address without prior permission of the learned Trial Court.

I.A. No.5290 of 2019 stands disposed of.