Jharkhand High Court

Lalu Prasad Saw @ Lalu Prasad Sahu @ Lalu ... vs The State Of Jharkhand on 19 November, 2024

Author:
Sujit Narayan Prasad

Bench:
Sujit Narayan Prasad
,
Navneet Kumar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 250 of 2024
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Lalu Prasad Saw @ Lalu Prasad Sahu @ Lalu Prasad
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent

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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR

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For the Appellant : Mr. Suraj Kumar, Advocate
Mr. Robin Kumar, Advocate
For the Respondent : Mr. Bhola Nath Ojha, APP

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th
Order No. 06 : Dated 19 November, 2024

I.A. No. 9108 of 2024

1. The instant interlocutory application has been filed on

behalf of appellant under Section 389(1) and (2)
Cr.P.C
for

suspension of sentence dated 19.01.2024 passed by the

learned Additional Sessions Judge-III, Lohardaga in S.T. Case

No. 36 of 2022 arising out of Bagru P.S. Case No. 25 of 2021

corresponding to G.R. Case No. 74 of 2022, whereby and

whereunder, the appellant has been convicted and sentenced

to undergo Rigorous Imprisonment for life for the offence

under
Section 304-B
/
IPC and further sentenced to

undergo RI for 3 years for the offence under
Section 498A
/
IPC with fine of Rs. 10,000 and in default of payment of fine

he shall further undergo SI for three months and the

appellant was further directed to undergo RI for 2 years with

fine of Rs. 10,000 for the offence U/S 4
D.P. Act
and in

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default of payment of fine to undergo SI for three months. All

the sentences were directed to go concurrently.

2. It has been submitted on behalf of the appellant that he

has falsely been implicated in this case. There is no material

available to substantiate the allegation of demand of dowry

and more so the deceased has died due to drowning in the

well in which she fell.

3. Learned counsel for the appellant has submitted by

placing reliance upon the order passed by the Co-ordinate

Bench of this Court in Cr. Appeal (DB) No. 149 of 2024

whereby the co-convict, namely, Arjun Saw @ Arjun Sahu

has been directed to be released on bail vide order dated

06.08.2024 observing that "the death is due to drowning,

which is apparent from the postmortem report and there is

no injury on the person of the deceased".

4. Learned counsel for the appellant, based upon the

aforesaid ground has submitted that it is a fit case where

sentence is to be suspended taking into consideration the

fact that the death is due to drowning, which is evident from

postmortem report.

5. While on the other hand, Mr. Bhola Nath Ojha, learned

APP appearing for the State has vehemently opposed the

prayer for suspension of sentence.

6. It has been contended that the basis of conviction is

made under
Section 113(B)
of the Evidence Act reason being

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that the dead body was found from the well which is inside

the house that is in orchard of the house of the appellant

i.e., matrimonial house of the deceased.

7. Learned counsel for the State has submitted that order

passed the Co-ordinate Bench while granting bail by

suspension of sentence of Arjun Saw @ Arjun Sahu in Cr.

Appeal (DB) No. 149 of 2024 is distinguishable on two

counts i.e., the said co-convict is the brother-in-law and

further there is no consideration of provision of
Section

113(B)
of the Evidence Act. Further, here the appellant is the

husband against whom the demand of dowry has

conclusively been proved and such under
Section 113(B)
of

the Indian Evidence Act, the onus is upon the appellant to

show the bona fide the reason of death since the death has

admittedly occurred in the matrimonial house of the

deceased wherein the dead body has been found in the well.

8. We have heard learned counsel for the parties and gone

across the finding recorded by the learned trial Court in the

impugned judgment as also the testimony of the witnesses

as available in the Lower Court Records as also the order

passed by the Co-ordinate Bench of this Court in Cr. Appeal

(DB) No. 149 of 2024 whereby the co-convict, namely, Arjun

Saw @ Arjun Sahu has been directed to be released on bail

vide order dated 06.08.2024.

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9. This Court in order to appreciate the argument

advanced on behalf of the parties has found the imputation

made against the appellant based upon the first information

report that the death of the daughter of the informant has

occurred on account of non-fulfillment of dowry. Hence, a

case was instituted under
Section 304B
/
and
498A
/
IPC as also under
Section 3
/
of the Dowry Prohibition Act.

After completion of the investigation, the charge-sheet was

submitted and accordingly charged were framed against the

appellant for the said offence.

10. This Court has gone through the testimonies of all the

witnesses, who consistently have deposed about demand of

dowry and for that reason within a period of six and half

months from the date of solemnization of marriage, the

deceased-wife was killed. It is also admitted fact on the basis

of material available on record that the death has been

shown to be caused due to drowning. The dead body was

found from the well which was situated in the orchard of the

matrimonial house of the deceased, i.e, the house of the

appellant, who is the husband of the deceased. After taking

out of the dead body from the well, the body was sent for

post mortem where the cause of death has been shown to be

due to drowning.

11. This Court has also considered the testimony of the

doctor [PW 7], who has conducted the postmortem, who has

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opined that the lungs were found water-logged, voluminous

and completely cover the heart. On section blood stained

frothy fluid streams away from cut surface. Heart right

chamber full and containing dark and red blood, left

chamber of heart empty.

12. The learned trial court after taking into consideration

the implication of Section 113( B) of the Evidence Act as also

taking into consideration the fact that the dead body was

found from the well which was inside the matrimonial house

of the deceased and as such has found the culpability

against the appellant.

13. This Court after having referred the aforesaid has

considered the order passed by the Co-ordinate Bench in Cr.

Appeal (DB) No. 149 of 2024 whereby the co-convict, namely,

Arjun Saw @ Arjun Sahu, who is the brother-in-law of the

appellant, has been directed to be released on bail vide order

dated 06.08.2024.

14. The learned counsel for the appellant has referred the

observation made by the Co-ordinate Bench the death is due

to drowning, which is apparent from the postmortem report

and there is no injury on the person of the deceased. The

aforesaid fact admittedly is not in dispute but the question

herein is that consideration which has been made by the

learned trial Court under
Section 113(B)
of the Evidence Act

and taking into consideration the statutory provision since

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the death is inside the house of the appellant and the body

of the deceased was found in well which was inside the

house of the appellant and as such the appellant being the

husband it is onus upon him to disprove the charge imputed

against him in view of provision of the
Evidence Act

particularly
Section 106
IPC.

15. The appellant, in Cr. Appeal (DB) No. 149 of 2024,

namely, Arjun Saw @ Arjun Sahu, who is the brother-in-law

of the appellant, the Co-ordinate Bench did not find any

material against him that the brother-in-law was living in the

same house i.e., matrimonial house of the deceased.

16. Therefore, this Court based upon the material available

on record, is of view that the principle of parity will not apply

with case of Arun Saw @ Arjun Sahu to that of the present

appellant in view of the law laid down by Hon'ble Apex Court

in the case of
Ramesh Bhavan Rathod vs. Vishanbhai

Hirabhai Makwana
, (2021) 6 SCC 230, wherein it has

been laid down that the principle of parity is to be

maintained but while applying the principle of parity, the

factual aspect as also the fact upon which the judgment of

conviction has been passed is required to be compared with.

For ready reference relevant paragraph is quoted as under:

"25. We are constrained to observe that the orders passed by
the High Court granting bail fail to pass muster under the law.
They are oblivious to, and innocent of, the nature and gravity
of the alleged offences and to the severity of the punishment in

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the event of conviction. In Neeru Yadav v. State of U.P. [Neeru
Yadav v. State of U.P., (2014) 16 SCC 508 :] , this Court has
held that while applying the principle of parity, the High Court
cannot exercise its powers in a capricious manner and has to
consider the totality of circumstances before granting bail. This
Court observed : (SCC p. 515, para 17)

"17. Coming to the case at hand, it is found that when a stand
was taken that the second respondent was a history-sheeter,
it was imperative on the part of the High Court to scrutinise
every aspect and not capriciously record that the second
respondent is entitled to be admitted to bail on the ground of
parity. It can be stated with absolute certitude that it was not
a case of parity and, therefore, the impugned order [
Mitthan
Yadav v. State of U.P.
, 2014 SCC OnLine All 16031] clearly
exposes the non-application of mind. That apart, as a matter of
fact it has been brought on record that the second respondent
has been charge-sheeted in respect of number of other heinous
offences. The High Court has failed to take note of the same.
Therefore, the order has to pave the path of extinction, for its
approval by this Court would tantamount to travesty of justice,
and accordingly we set it aside.

26. Another aspect of the case which needs emphasis is the
manner in which the High Court has applied the principle of
parity. By its two orders both dated 21-12-2020 [
Pravinbhai
Hirabhai Koli v. State of Gujarat
, 2020 SCC OnLine Guj 2986] ,
[Khetabhai Parbatbhai Makwana v. State of Gujarat, 2020
SCC OnLine Guj 2988] , the High Court granted bail to Pravin
Koli (A-10) and Kheta Parbat Koli (A-15).

Parity was sought
with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail
was granted on 22-10-2020 [
Siddhrajsinh Bhagubha Vaghela
v. State of Gujarat
, 2020 SCC OnLine Guj 2985] on the ground
(as the High Court recorded) that he was "assigned similar
role of armed with stick (sic)". Again, bail was granted to
Vanraj Koli (A-16) on the ground that he was armed with a
wooden stick and on the ground that Pravin (A-10), Kheta (A-

15) and Sidhdhrajsinh (A-13) who were armed with sticks had
been granted bail. The High Court has evidently
misunderstood the central aspect of what is meant by parity.

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Parity while granting bail must focus upon the role of the
accused. Merely observing that another accused who was
granted bail was armed with a similar weapon is not sufficient
to determine whether a case for the grant of bail on the basis
of parity has been established. In deciding the aspect of
parity, the role attached to the accused, their position in
relation to the incident and to the victims is of utmost
importance. The High Court has proceeded on the basis of
parity on a simplistic assessment as noted above, which again
cannot pass muster under the law."

17. The Hon'ble Apex Court in
Tarun Kumar vs.

Assistant Director Directorate of Enforcement
, (2023)

SCC OnLine SC 1486 wherein at paragraph-18, it has

been held by the Hon'ble Apex Court that parity is not the

law and while applying the principle of parity, the Court is

required to focus upon the role attached to the accused

whose application is under consideration.

18. This Court based upon the aforesaid discussion is of the

view that the case of the present appellant is quite

distinguishable to the case of Arun Saw @ Arjun Sahu, as

such no parity can be given to the case of present appellant.

19. Accordingly, the present Interlocutory Application

stands dismissed.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.)
Alankar/