Mohan Yadav And Ors vs State Of Jharkhand

I.A. No.4374 of 2019

Heard, learned counsel for the appellant and learned A.P.P. representing the State on the prayer for suspension of sentence made on behalf of appellant no. 2, Sanjeev Gorai @ Sanjiv Gorai @ Bengedi made through an interlocutory application bearing No.4374 of 2019, during pendency of the Appeal.

All the four appellants herein have been convicted under Section 302 IPC vide impugned judgment dated 30.07.2018 rendered by the court of learned Additional Sessions Judge-V, Jamshedpur, in Sessions Trial No.332 of 2017. The appellant no.2-Sanjeev Gorai @ Sanjiv Gorai @ Bengedi along with appellant- Mohan Yadav have been convicted under Section 302 of the IPC and 27 of the Arms Act while the learned trial court has also held the charges under Section 302/120B of the IPC proved against all the four appellants. All the four appellants have been sentenced to undergo imprisonment for life with a fine of Rs.20,000/- for the offence punishable under Section 302/120B of the Indian Penal Code with a default sentence. Separate sentence has also been awarded under Section 27 of the Arms Act against the convicts Mohan Yadav and Sanjeev Gorai @ Sanjiv Gorai @ Bengedi, vide impugned order of sentence dated 31.07.2018.

Learned Senior counsel for the appellants submits that by the orders dated 18.02.2019 and 07.03.2019, appellant nos. 3 and 4 respectively have been granted bail by a co-ordinate Bench of this Court. Learned trial court has erroneously recorded a finding at paragraph 26 of the judgment as against this appellant that the fire bullet marks "A3I", "A3II" and "A3III" have been fired from country-made semi-automatic pistol marked "B4" and these fired bullets have been recovered from the dead body of the deceased. By referring to Exhibit-9, it is submitted that none of the two seizure list witnesses have been produced during trial to prove the recovery of the fire arms and ammunition from the present appellant. The investigating officer who allegedly made the seizure list has also not come forward to depose in favour of the recovery. Learned trial court at paragraph 31 of the impugned judgment recorded a finding that as per the confessional statement of co-accused, arms and ammunition were recovered from co-accused Mohan Yadav. Investigating officer, P.W.7 in his deposition has stated that the arms and ammunition have been recovered from the vegetable market, an open place and not from the possession of the accused persons. It is also not proved as to who prepared the samples of the arms and ammunition sent to State Forensic Science Laboratory (SFSL). Therefore, there is little value of Exhibit-11, the FSL report, which has found bullets recovered from the dead body fired by the country-made pistol alleged to be seized from this appellant. It is further submitted that there is no eye witness who have come forward to depose in favour of the prosecution story. P.W.4 (informant and father of the deceased), saw the dead body of his son lying at the vegetable shop. P.W.3 mother, P.W.5 and P.W.6 cousins of the deceased have also not seen the occurrence. In the circumstances when the co-accused/appellants have been enlarged on bail, the present appellant no.2 also deserves to be released on bail during pendency of the appeal by suspending his sentence.

Learned Additional Public Prosecutor representing the State has strongly opposed the prayer for suspension of sentence. He submits that informant and other prosecution witnesses, such as, P.W.9, younger brother of the deceased have clearly stated that earlier there was an attempt on the life of the deceased on 20.09.2016 and he was threatened with his life by one of the accused persons. The police seized arms from near the vegetable market and also from the possession of the accused persons including the present appellant, which is Exhibit-9 on which the signature of this appellant and other accused persons has been inscribed. The seizure-list has been admitted without objection. Neither has the signature of the appellant been questioned nor has he made objection to the authenticity of his signature when he made statement under Section 313 Cr.P.C. The seized weapon of assault and the bullets recovered from the dead body were sent for Forensic Examination. The report of the FSL i.e. Exhibit-11, the use of semi-automatic Pistol recovered from this appellant with the bullets recovered from the dead body connect the involvement of this appellant in the offence. There is a clear connection through scientific evidence between the appellant no.2-Sanjeev Gorai @ Sanjiv Gorai @ Bengedi with the murder of the victim Amit Rai and also existence of prior enmity/motive proved by the prosecution witnesses. Therefore, this appellant does not deserve the privilege of suspension of sentence as he has been in custody since 10.01.2017 only.

We have considered the submissions of learned Senior counsel for the appellant and learned Additional Public Prosecutor representing the State. We have also taken note of the facts and circumstances of the case including the relevant materials evidence relied upon by the rival parties. On perusal of the materials on record, including Exhibit-9 (seizure-list), Exhibit-11 (SFSL Report) and the ocular testimony of other prosecution witnesses specifically the informant P.W.4 and P.W.9, we are not inclined to enlarge the appellant no.2-Sanjeev Gorai @ Sanjiv Gorai @ Bengedi on bail at this stage. Accordingly prayer for bail made through Interlocutory Application No.4374 of 2019 is rejected.

I.A. No.4374 of 2019 is dismissed.