Jharkhand High Court
Mithilesh Kharwar vs The State Of Jharkhand on 23 April, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 03 of 2025
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Mithilesh Kharwar, aged about 42 years, son of Dilawar Kharwar, resident
of village Mani Nagar, PO and PS Dehri, District Rohtas (Bihar).
... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Mr. Anjani Kumar, Advocate
For the State : Mr. V.S. Sahay, APP;
For the Informant : Mr. Sheo Kumar Singh, Advocate
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Order No.06/Date: 23.04.2026
I.A. No. 3679 of 2026
1. The instant interlocutory application has been preferred by the
appellant under section 430(1) of the BNSS for suspension of sentence
during pendency of the instant appeal in connection with impugned
judgment of conviction dated 12.07.2024 and order of sentence dated
18.7.2024 passed by the learned Additional Sessions Judge-II, Palamau at
Daltonganj in Sessions Trial No. 105A of 2015, arising out of Chainpur P.S.
case No. 102 of 2009, whereby and whereunder, the appellant has been
convicted for the offence punishable under sections 302/149, 376(2)(g),
148, 120B of the Indian Penal Code and under section 27 of Arms Act and
sentenced to undergo rigorous imprisonment for life with fine of Rs.
20,000/- and in default of payment of fine, simple imprisonment for one
year for the offence under section 302 r/w 149 of the Indian Penal Code and
rigorous imprisonment for life with fine of Rs. 20,000/- and in default of
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payment of fine, simple imprisonment for one year for the offence under
section 376(2)(g) of the Indian Penal Code. Further, the appellant was
sentenced to undergo rigorous imprisonment for 3 years along with fine of
Rs. 5,000/- for the offence under section 148 and in default of payment of
fine, simple imprisonment of four months. Further the appellant was
sentenced to undergo rigorous imprisonment for ten years along with a fine
of Rs. 10,000/- for the offence under section 120B of the Indian Penal Code
and in default of payment of fine, simple imprisonment for six months. Also
the appellant has been sentenced to undergo rigorous imprisonment for
three years with a fine of Rs. 5,000/- for the offence under section 27 of the
Arms Act and in default of payment of fine, simple imprisonment of four
months.
Factual Matrix
2. The brief facts of the prosecution case leading to the present Criminal
Appeal are on the basis of fardbeyan of the informant namely Prakash
Kharwar wherein it is stated that about six months ago his co-villagers,
namely, Chandan Kharwar, Phantar Kharwar, Ghora Kharwar, Mithilesh
Kharwar, Chutaria Kharwar, Shatrudhan Kharwar and Awatar Kharwar had
committed murder of one Rajaul Ansari. In the said murder case, sister-in-
law (Sali) of the informant was a witness as she had seen the occurrence of
murder of Rajaul Ansari. The family of informant had good and friendly
relations with family of Rajaul Ansari and hence, the sister-in-law of the
informant was pressurized by the above-named persons not to give evidence
in the said murder case. They also threatened her of dire consequences, on
which the informant had scolded Chandan Kharwar, Phantar Kharwar and
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Bora Kharwar. Thereafter, the above-named accused persons of the said
murder case along with others including the accused persons started making
conspiracy to commit murder of family members of the informant. When
the informant came to know of this fact, he along with his entire family
including his wife, parents, uncle, grand-father, brothers and others left his
village Mani Nagar and started putting up in tents besides a Mahua tree near
village-Gandhipur under Chainpur Police Station. In order to earn their
livelihood, the informant and his relatives started selling bangles, vanity
articles and Sari by visiting different villages. They were putting up there
for about a week and before that they were having shelter at Redma,
Daltonganj.
3. It is further alleged that on 20.06.2009 at about 10.00 am, two
persons from the opposite party namely, Atesh Lal Kharwar and Akshay
Kumar came to the place of the informant and left after spotting the place.
In the intervening night of 20-21.06.09 at about 12.00 midnight, the present
accused persons and other co-accused persons as named in the F.I.R came to
the shelter of the informant while they were asleep. They woke up hearing
sound of indiscriminate firing. The accused persons surrounded the tents
from all sides and started making assault by using gunfire, bhujali and
knife. When the informant along with his wife ‘A’ and son started running
away, Mithilesh Kharwar assaulted ‘A’, the wife of the informant by means
of Bhujali. The informant anticipating danger of life, started running away
along with his son in his lap. Jhapsi Kharwar made a gun fire pointing
towards the informant. The informant was able to fend off the attack but his
younger brother was hit by it. The other assailants having country-made
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Pistol, knife and Bhujali in their hands assaulted many members of the
informant side giving serious injuries on their person. The informant along
with his son hid himself in a house nearby and started watching the
occurrence. The informant saw that Phantar Kharwar, Mithilesh Kharwar
and Nawal Kharwar dragged his wile and took her 20 yards away from the
tent and committed rape upon her. Thereafter, they made her grievously
injured by means of knife and Bhujali. Thereafter, all the assailants fled
away. After some time, the informant came and found his wife dead in
naked condition in a pool of blood.
4. On the basis of aforesaid fardbeyan of the informant Chainpur PS
Case No. 102 of 2009 dated 21.06.2009 under sections 147,148,149,323,
341, 342,324,307, 376, 302 and 120B of the Indian Penal Code and section
27 of the Arms Act was registered against the appellant. On completion of
investigation charge-sheet was submitted against the appellant and the
cognizance of the offence was taken and case was committed to the court of
sessions for trial and disposal.
5. Accordingly, the trial proceeded and the present applicant was found
guilty by the learned trial court and accordingly, has been sentenced
aforesaid.
6. The present application has been filed on behalf of applicant for
suspension of aforesaid sentence during pendency of the instant appeal.
Arguments advanced on behalf of the applicant:
7. The learned counsel for the applicant has raised the following points
for consideration of the prayer made on behalf of the applicant:
(i) It has been contended that most of the prosecution witnesses
5have proclaimed themselves as the eye witness to the alleged
occurrence and deposed that multiple gunshots were fired by
the accused persons, however, not a single pellet, cartridge or
any gunshot mark was found at the place of occurrence.
(ii) It is stated that as per the deposition of PW 1 and PW 3, the
present appellant along with Fantar Kharwar and Nawal
Kharwar committed rape of the deceased in front of them,
whereas, the PW 2 has deposed in his deposition that the
present appellant along with Fantar Kharwar and Chandan
Kharwar committed rape with the deceased in front of him,
thereafter, the PW 6 has deposed that the present appellant
along with four other accused persons committed rape upon the
deceased in front of him but as a matter of fact, from the bare
perusal of the postmortem report it is apparent that neither any
injury, nor any sign of rape or any spermatozoa was found on
the private part of the deceased.
(iii) It is stated that although it has been alleged that the said
occurrence continued for 20 to 25 minutes in a residential
locality, however, not a single independent witness came
forward to approve the same. Also, all the proclaimed eye
witnesses except the doctor and the case I.O. are tutored as well
as interested witnesses.
(iv) Although, it has been alleged that the proclaimed eye witnesses
saw the occurrence of rape and murder by hiding in bushes
situated at 10 steps from the place of occurrence, however, the
6I.O. of the case has not stated about the presence of any bushes
near the place of occurrence.
(v) It is further submitted that from bare perusal of the defense
witnesses, it is apparent that the present appellant was in
Rohtas, Bihar on the day of occurrence and also, he was not
indulged in the murder of the said Rajaul Ansari as alleged in
the present case.
(vi) It is submitted that the statements of the prosecution witnesses
under Section 161 of the Cr.P.C. before the Police is in contrary
to their deposition made before the court below at the time of
evidence which creates doubt over the entire case of
prosecution. Nothing incriminating has been recovered either
from the possession of the appellant or from the place of
occurrence.
(vii) It is further submitted that another accused namely Nawal
Kharwar @ Niraj Kharwar @ Shrawan Gulgulia who stands on
same accusations and similar footing of the present appellant
has been acquitted by this Hon’ble High Court vide order dated
01.07.2025, passed by a coordinate Bench of this court in Cr.
Appeal (D.B) No. 457 of 2018.
(viii) It is stated that the sentence of the other co-accused of the
present case, namely, Talash Kharwar, Awatar Kharwar, Fantar
Kharwar and Pramila Devi has been already suspended by
coordinate benches of this court vide orders dated 30.01.2023,
26.11.2024, 07.02.2025 and 17.03.2025, passed in Cr. A.(D.B)
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No. 1092/ 2022, Cr. A.(DB) No. 1168/ 2024, Cr. A.(DB) No.
1547/2024 and Cr. A.(DB) No. 1606/2024 respectively,
therefore even on the issue of parity also the present
application is fit to be allowed and sentence passed by the
learned Trial court against the appellant/ applicant may be
suspended during pendency of the instant appeal.
(ix) It is stated that the present appellant has remained all along in
custody since 31.07.2017 till date for more than 8 years and 7
months, therefore it has been submitted that since there is
hardly any chance of early hearing of present appeal in near
future, as such, the prayer for suspension of sentence made by
the appellant may be considered.
Arguments advanced by the learned State counsel:
8. Per contra, the learned counsel for the State while defending the
impugned judgment has taken following points:
(i) The learned counsel for the State has submitted that
prosecution has been able to prove its case beyond all
reasonable doubts, the witnesses examined on behalf of
prosecution have fully supported the case, identified the
accused /appellant in the dock.
(ii) He has further stated that the present appellant came along with
many others and all of them were armed with deadly weapons.
The appellant participated in the said occurrence actively and
also committed murder of the deceased. It is further submitted
that the appellant was one of the assailants who used the
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firearm during the occurrence and the prosecution case cannot
be doubted merely on the ground of non-recovery of weapon.
(iii) He has further argued that multiple injuries were reported
during postmortem by the Doctor who conducted autopsy upon
the dead body of deceased, which is apparent from the
postmortem report (Ext-1). He further argued that the Doctor
has found as many as six incised penetrating wounds on the
dead body of the deceased during postmortem. The Doctor
(PW-7) has clearly stated that the possibility of rape cannot be
ruled out.
(iv) Learned counsel for the respondent/state and the informant, on
the aforesaid premise, has submitted that alleged offence fully
made out against the applicant and, therefore, it is not a fit case
for suspension of sentence, as such, the present interlocutory
application may be rejected.
Analysis:
9. We have heard the 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 along with other exhibits, as available
in the Trial Court Records.
10. It is pertinent to mention here that earlier I.A. No. 1793 of 2025 has
been filed on behalf of the appellant for grant of bail which was dismissed
as not pressed vide order dated 21.02.2025 passed by this court, for ready
reference the relevant paragraph is being quoted as under:
9“Cr. Appeal (DB) No. 03 of 2025
I.A. No. 1793 of 2025
5. Learned counsel for the appellant, when this Court has expressed
its view and started dictation in the matter, has sought for leave of this
Court not to press the instant Interlocutory Application.
6. In view of such submission, the instant Interlocutory Application
stands dismissed as not pressed and as such disposed of.”
11. The appellant has again tried to make out a case by questioning the
impugned Judgment passed by the learned trial court for the purpose of
making out a prima facie case for suspension of sentence.
12. Before entering into the issue that whether the prayer of the applicant
for suspension of sentence is fit to be allowed or not, it requires to refer
herein the settled position of law.
13. The Hon’ble Apex Court in the case of Preet Pal Singh vs. State of
U.P., (2020) 8 SCC 645 has observed that there is difference between grant
of bail in case of pre-trial arrest and suspension of sentence, post-
conviction.
14. In the pre-trial arrest, there may be presumption of innocence, which
is a fundamental postulate of criminal jurisprudence, and the courts may be
liberal, depending on the facts and circumstances of the case, however, in
case of postconviction bail, by suspension of operation of the sentence,
there is a finding of guilt and the question of presumption of innocence does
not arise. For ready reference the relevant paragraph of the aforesaid
judgment is being quoted as under:
“35. There is a difference between grant of bail under Section
439 CrPC in case of pre-trial arrest and suspension of sentence
under Section 389 CrPC and grant of bail, post conviction. In the
earlier case, there may be presumption of innocence, which is a
fundamental postulate of criminal jurisprudence, and the courts may
be liberal, depending on the facts and circumstances of the case, on
10the principle that bail is the rule and jail is an exception, as held by
this Court in Dataram Singh v. State of U.P. [Dataram Singh v. State
of U.P., (2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675] However, in case
of post-conviction bail, by suspension of operation of the sentence,
there is a finding of guilt and the question of presumption of innocence
does not arise. Nor is the principle of bail being the rule and jail an
exception attracted, once there is conviction upon trial. Rather, the
court considering an application for suspension of sentence and grant
of bail, is to consider the prima facie merits of the appeal, coupled
with other factors. There should be strong compelling reasons for
grant of bail, notwithstanding an order of conviction, by suspension of
sentence, and this strong and compelling reason must be recorded in
the order granting bail, as mandated in Section 389(1) CrPC.”
15. Thus, it is evident from the aforesaid judgment that during
consideration of suspension of sentence which is the postconviction stage,
the presumption of innocence in favour of the accused cannot be available
and at this stage, the Court’s only duty is to see that the prima-facie case is
made out or not, as such, the detailed appreciation of evidence is not
required at this stage. It has further been observed by the Hon’ble Apex
Court that there should be strong compelling reasons for grant of bail,
notwithstanding an order of conviction, by suspension of sentence, and this
strong and compelling reason must be recorded in the order granting bail, as
mandated in Section 389(1) Cr.P.C./430 BNSS.
16. Since, it is case under Section 302 IPC and present
appellant/applicant has been convicted for offence of murder therefore, at
this juncture, it requires to refer herein the settled position of law that in
cases involving conviction under Section 302 IPC, it is only in exceptional
cases that the benefit of suspension of sentence can be granted, reference in
this regard may be made to the judgment rendered by the Hon’ble Apex
Court in the case of Omprakash Sahni v. Jai Shankar Chaudhary, (2023)
11
6 SCC 123, for ready reference, the relevant paragraphs of the aforesaid
Judgment are being quoted as under:
“31. In Vijay Kumar v. Narendra [Vijay Kumar v. Narendra, (2002) 9
SCC 364 : 2003 SCC (Cri) 1195] and Ramji Prasad v. Rattan Kumar
Jaiswal [Ramji Prasad v. Rattan Kumar Jaiswal, (2002) 9 SCC 366 :
2003 SCC (Cri) 1197] , it was held by this Court that in cases
involving conviction under Section 302IPC, it is only in exceptional
cases that the benefit of suspension of sentence can be granted. In
Vijay Kumar [Vijay Kumar v.Narendra, (2002) 9 SCC 364 : 2003 SCC
(Cri) 1195] , it was held that in considering the prayer for bail in a
case involving a serious offence like murder punishable under Section
302IPC, the court should consider the relevant factors like the nature
of accusation made against the accused, the manner in which the
crime is alleged to have been committed, the gravity of the offence,
and the desirability of releasing the accused on bail after they have
been convicted for committing the serious offence of murder.
33. Bearing in mind the aforesaid principles of law, the endeavour on
the part of the court, therefore, should be to see as to whether the case
presented by the prosecution and accepted by the trial court can be
said to be a case in which, ultimately the convict stands for fair
chances of acquittal. If the answer to the abovesaid question is to be
in the affirmative, as a necessary corollary, we shall have to say that,
if ultimately the convict appears to be entitled to have an acquittal at
the hands of this Court, he should not be kept behind the bars for a
pretty long time till the conclusion of the appeal, which usually takes
very long for decision and disposal. However, while undertaking the
exercise to ascertain whether the convict has fair chances of acquittal,
what is to be looked into is something palpable. To put it in other
words, something which is very apparent or gross on the face of the
record, on the basis of which, the court can arrive at a prima facie
satisfaction that the conviction may not be sustainable. The appellate
court should not reappreciate the evidence at the stage of Section
389 CrPC and try to pick up a few lacunae or loopholes here or there
in the case of the prosecution. Such would not be a correct approach.”
17. The Hon’ble Supreme Court recently on 09th April, 2025, in the case
of Janardan Ray Vs. The State of Bihar & Anr. ETC. (Cr. Appeal Nos.
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1892-1893 of 2025 arising out of SLP (Crl.) Nos. 18326-18327 of 2024)
while placing reliance upon decision rendered in the case of Om Prakash
Sahni Vs. Jai Shankar Chaudhary and Anr., (supra) has observed at
paragraphs-6 and 7 as under:
“6. In our opinion, the decision of this Court in the case of Om
Prakash Sahni Vs. Jai Shankar Chaudhary and Anr. (2023) 6 SCC 123
clinches the issue involved in the present appeals. It has been
observed while considering the scope of Section 389 of Cr.P.C as
under.:-
“30. In Kishori Lal v. Rupa [Kishori Lal v. Rupa, (2004) 7 SCC
638], this Court has indicated the factors that require to be
considered by the courts while granting benefit under Section
389 CrPC in cases involving serious offences like murder, etc.
Thus, it is useful to refer to the observations made therein, which
are as follows : (SCC pp. 639-40, paras 4-6)
4. Section 389 of the Code deals with suspension of execution of
sentence pending the appeal and release of the appellant on
bail. There is a distinction between bail and suspension of
sentence. One of the essential ingredients of Section 389 is the
requirement for the appellate court to record reasons in writing
for ordering suspension of execution of the sentence or order
appealed against. If he is in confinement, the said court can
direct that he be released on bail or on his own bond. The
requirement of recording reasons in writing clearly indicates
that there has to be careful consideration of the relevant aspects
and the order directing suspension of sentence and grant of bail
should not be passed as a matter of routine.
5. The appellate court is duty-bound to objectively assess the
matter and to record reasons for the conclusion that the case
warrants suspension of execution of sentence and grant of bail.
In the instant case, the only factor which seems to have weighed
with the High Court for directing suspension of sentence and
grant of bail is the absence of allegation of misuse of liberty
during the earlier period when the accused- respondents were
on bail.
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6. The mere fact that during the trial, they were granted bail and
there was no allegation of misuse of liberty, is really not of much
significance. The effect of bail granted during trial loses
significance when on completion of trial, the accused persons
have been found guilty. The mere fact that during the period
when the accused persons were on bail during trial there was no
misuse of liberties, does not per se warrant suspension of
execution of sentence and grant of bail. What really was
necessary to be considered by the High Court is whether reasons
existed to suspend the execution of sentence and thereafter grant
bail. The High Court does not seem to have kept the in view.
——
——-
7. Having regard to the afore stated settled legal position, we are of
the opinion that the High Court has committed gross error in
appreciating the evidence already appreciated by the Trial Court at
the time of considering the applications seeking suspension of
sentence pending the appeal. Since this was a case of conviction
under Section 302 IPC, the initial presumption available to the
accused before conviction, would not be available to him. The High
Court could not have suspended the sentence, reappreciating the
evidence at the stage of Section 389 and trying to pick up a few
lacunae or loopholes here or there in the case of prosecution. The
consideration of High Court to the submission made on behalf of the
accused that he had not misused the liberty during the trial or that the
appeal was not likely to be heard in near future, could not be said to
be the proper consideration for suspending the sentence of the
accused, who have been convicted for the serious offence
under Section 302, IPC. It is only in rare and exceptional
circumstances, the benefit of suspension of sentence should be granted
by the appellate court to the accused convicted for the serious offence
under Section 302, IPC.”
18. Thus, it is evident from perusal of the relevant paragraphs of the
aforesaid judgment, is it is apparent that while considering the prayer for
bail, in a case involving a serious offence like murder punishable
under Section 302 IPC, the Court should consider the relevant factors like
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the nature of accusation made against the accused, the manner, in which,
the crime is alleged to have been committed, the gravity of the offence, and
the desirability of releasing the accused on bail after they have been
convicted for committing the serious offence of murder.
19. It is further evident from perusal of the relevant paragraphs of the
aforesaid judgments that the appellate court should not reappreciate the
evidence at the stage of consideration of suspension of sentence and try to
pick up a few lacunae or loopholes here or there in the case of the
prosecution. Such would not be a correct approach and at this stage Court
is only to see the prima facie case for its satisfaction.
20. In the aforementioned cases it has further been observed by the
Hon’ble Apex Court that the consideration of High Court to the submission
made on behalf of the accused that he had not misused the liberty during the
trial or that the appeal was not likely to be heard in near future, could not be
said to be the proper consideration for suspending the sentence of the
accused, who have been convicted for the serious offence under Section
302, IPC and it is only in rare and exceptional circumstances, the benefit of
suspension of sentence should be granted by the appellate court to the
accused convicted for the serious offence under Section 302, IPC.
21. It requires to refer herein that In the very recent judgment rendered by
the Hon’ble Apex Court in the case of Chhotelal Yadav versus state of
Jharkhand & Anr (Criminal Appeal no.4804/2025) has observed that
while considering the plea for suspension of sentence of life imprisonment
is that the convict should be in a position to point out something very
palpable or a very gross error in the judgment of the Trial Court on the basis
15
of which he is able to make good his case that on this ground alone, his
appeal deserves to be allowed and he be acquitted.
22. It has further been observed by the Hon’ble Apex Court that
when Section 149 IPC is made applicable, the Court should be mindful that
all that is required to be looked into is whether the accused was one of the
members of the unlawful assembly or not and even if a particular accused
has not participated in the actual assault, he could still be held guilty, and all
the aforesaid aspects of the matter should have been threadbare considered
by the High Court before exercising its discretion in favour of the convicts.
23. In the backdrop of the aforesaid settled proposition of law, this Court
is now adverting to the factual aspect of the case as well as the contention
of the learned counsel for the appellant and State, in order to find out that
whether the prayer of the applicant/appellant for suspension of sentence is
fit to be allowed or not.
24. It is evident from impugned judgment of conviction and sentence
that the instant case based upon direct ocular testimony. The witnesses,
namely Samrajya Kharwar (P.W.1), Madhuri Devi (P.W.2), Sagardin
Kharwar (P.W.3), Ramlal Kharwar (P.W.4), and Devgan Kharwar @
Prakash Kharwar (P.W.6, informant), have consistently deposed before the
learned Trial Court that they witnessed the occurrence of the murder with
their own eyes and have unequivocally identified the accused/appellant.
25. PW-6 Deogan Kharwar is the informant of this case. He has stated
that they used to live in the tents with the members of the family and on
that very night, Mithilesh Kharwar (applicant herein), Japshi Kharwar,
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Nawal Kharwar, Niraj Kharwar, Pramila Devi Mask, Deoraj, Deepak,
Pawan, Chutariya, @ Talash Kharwar, Hariya Kharwar came at Gandhipur
and started firing indiscriminately. In the firing, his brother Samrat
Kharwar was hit with bullet. He has further stated that Mithilesh Kharwar,
Nawal Kharwar @ Niraj, Jhapsi Kharwar and Deepak raped ‘A’ (his wife)
and thereafter, struck on her stomach and chest with knife and Bhujali
resulting in bleeding injury which led to her death.
26. This witness has further stated that he was seeing the occurrence
hiding himself in a nearby house and when he reached at the Place of
occurrence, he found his wife ‘A’ stark naked. He has identified Mithilesh
Kharwar, Chandan Kharwar, Pramila Devi and Awatar Kharwar as
participants in the occurrence.
27. Further PW-1 Samraj Kherwar is one of the victims. He has stated in
his examination-in-chief that Mithilesh Kherwar (appellant/applicant
herein) shot him with gunfire which hit his back and after receiving
gunshot injury, he ran ten steps forward and hid himself behind the bushes
and from there, he saw that Mithilesh Kherwar, Phanter Kherwar and
Nawal Kherwar caught hold of his Bhabhi ‘A’ and raped her. Thereafter,
she was murdered with knife blows. The witness has stated that he
identified the accused persons in torch light. In his cross-examination he
has stated that the accused persons could not see him as he had hidden
himself in the bushes.
28. Further PW-3 Sagardeen Kharwar, PW-4 Ramlal Kharwar and PW-5
Siddhu Kharwar have supported the case of prosecution and all of them
have stated that the appellant was the person who opened fire in the whole
17
incident and also involved in committing rape upon the deceased.
29. Thus, from the aforesaid prima facie it is evident that role of the
present appellant as main aggressor in the alleged commission of crime has
fully been substantiated by the oral testimony of the Eye-witnesses.
30. So far as the contradiction among the testimony of witnesses which
has been raised by the learned counsel for the appellant is concerned, there
is some minor contradictions and embellishments are discernible in the
testimony of the witnesses; however, these are not of such magnitude as to
impair the core of the prosecution case or to discredit the substratum of the
ocular evidence.
31. Further, in the aforesaid context it needs to refer herein the settled
position of law that a witness may be untruthful in some aspects but the
other part of the evidence may be worthy of acceptance. Discrepancies may
arise due to error of observations, loss of memory due to lapse of time,
mental disposition such as shock at the time of occurrence and as such the
normal discrepancy does not affect the credibility of a witness. Reference
in this regard may be taken from the judgment rendered by the Hon’ble
Apex Court in the case of Bhagwan Jagannath Markad & Ors. Vs. State
of Maharashtra, (2016) 10 SCC 537.
32. Further at this juncture it requires to refer herein that as per the
judgment rendered by the Hon’ble Apex Court in the case of Janardan Ray
Vs. The State of Bihar & Anr. ETC (supra) which has been quoted and
referred hereinabove it is settled position of law that the appellate court
should not reappreciate the evidence at the stage of consideration of
18
suspension of sentence and try to pick up a few lacunae or loopholes here
or there in the case of the prosecution and it would not be a correct
approach and at this stage Court is only to see the prima facie case for its
satisfaction.
33. The other contention of the learned counsel for the
appellant/applicant that the alleged offence of rape against the present
applicant has not been substantiated by the medical evidence as the doctor
has opined that no injury mark found on the private parts of the deceased
and further vaginal smear examination shows no spermatozoa.
34. In the aforesaid context it needs to refer herein the settled legal
position that where there is a contradiction between medical evidence and
ocular evidence, the ocular testimony of a witness has greater evidentiary
value vis-Ã -vis medical evidence. Further if there is gross contradiction
between medical evidence and oral evidence, and if the medical evidence
makes the ocular evidence improbable and rules out all possibility of ocular
evidence being true the ocular evidence may be disbelieved.
35. In the instant case, P.W.7, Dr. Prasun Kumar, who conducted the
post-mortem examination on the dead body of the deceased ‘A’ on
31.06.2009, has deposed that he did not find any signs of rape upon the
person of the deceased. However, in cross-examination, he hastened to add
that the possibility of rape could not be conclusively ruled out. In view of
such uncertain medical opinion, it cannot be definitively held that rape was
not committed upon the informant’s wife, and the possibility thereof
remains open and prima facie based upon the said statement case of the
prosecution wherein there is direct evidence on the point of alleged
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commission of rape cannot be thrown out.
36. Thus, upon consideration of the discussion made hereinabove, this
Court is of the considered view that, prima facie, the culpability of the
present applicant/appellant in the alleged commission of crime stands
established by the prosecution.
Issue of parity
37. It has been contended by the learned counsel for the appellant that the
sentence of the other co-accused of the present case, namely, Talash
Kharwar, Awatar Kharwar, Fantar Kharwar and Pramila Devi has been
already suspended by coordinate benches of this Court vide orders dated
30.01.2023, 26.11.2024, 07.02.2025 and 17.03.2025, passed in Cr. A.(D.B)
No. 1092/ 2022, Cr. A.(DB) No. 1168/ 2024, Cr. A.(DB) No. 1547/2024 and
Cr. A.(DB) No. 1606/2024 respectively, and further another accused namely
Nawal Kharwar @ Niraj Kharwar @ Shrawan Gulgulia who stands on same
accusations has been acquitted by this High Court vide order dated
01.07.2025, passed by a coordinate Bench of this court in Cr. Appeal (D.B)
No. 457 of 2018, therefore even on the issue of parity also the present
application is fit to be allowed.
38. This Court is conscious of the fact that while dealing with the prayer
for suspension of sentence one or the other accused person, the culpability
alleged against one or the other accused person is to be taken into
consideration.
39. There is no dispute that in the matter of suspension of sentence or in
the matter of bail the principle of parity is to be followed. But while
20
following the principle of parity, the revolving circumstances regarding the
culpability is to be considered by the Court. Parity does not mean that if the
co-accused or co-convict has been allowed to be released on bail there
merely on the principle of parity, the same relief is to be granted rather the
culpability of the particular accused persons is to be assessed before
applying the principle of parity, reference in this regard be made to the
judgment rendered by the Hon’ble Apex Court in the case of Tarun Kumar
vs. Assistant Director Directorate of Enforcement, 2023 SCC OnLine SC
1486.
40. It is further settled connotation of law that Court cannot exercise its
powers in a capricious manner and has to consider the totality of
circumstances before granting bail and by only simply saying that another
accused has been granted bail is not sufficient to determine whether a case
for grant of bail on the basis of parity has been established. Reference in
this regard may be made to the judgment rendered by the Hon’ble Apex
Court in Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana,
(2021) 6 SCC 230.
41. Thus, while dealing with the prayer for suspension of sentence one or
the other accused person, the culpability alleged against one or the other
accused person is to be taken into consideration. Further, parity cannot be
the sole ground for allowing prayer for suspension of sentence rather the
Court is to satisfy itself that there are sufficient grounds for releasing the
applicant on bail.
42. Further, Law of Parity is a desirable rule where the case of
accused/petitioner is identical with the co-accused, who is already enlarged
21
on bail and simply because the co-accused has been granted bail also cannot
be the sole criteria for granting bail to another accused if they are standing
on different footings.
43. This Court applying the aforesaid principle of parity as has been
deliberated upon by the Hon’ble Apex Court is proceeding to consider the
issue of parity.
44. This Court has perused the orders dated 30.01.2023, 26.11.2024,
07.02.2025 and 17.03.2025, passed in Cr. A. (D.B) No. 1092/ 2022, Cr.
A.(DB) No. 1168/ 2024, Cr. A.(DB) No. 1547/2024 and Cr. A.(DB) No.
1606/2024 respectively, by which the prayer for suspension of sentence of
the co-accused namely Talash Kharwar, Awatar Kharwar, Fantar Kharwar
and Pramila Devi has been allowed. Further this Court has perused the order
dated 01.07.2025, passed by a coordinate Bench of this court in Cr. Appeal
(D.B) No. 457 of 2018, by which the co-accused namely Nawal Kharwar
has been acquitted from the said charges. For ready reference the relevant
paragraphs of the aforesaid order is being quoted as under:
30.01.2023 (Cr. A. (D.B) No. 1092/ 2022)
So far as the informant is concerned, he has been examined as P.W. 1,
but his evidence does not indicate about the involvement of the
appellant in the commission of the rape and murder of the wife of the
informant. The appellant has been attributed to have caused a Bhujali
blow upon P.W. 5. Regard being had to the above, we are inclined to
admit the appellant on bail. Accordingly, during pendency of this
appeal, the appellant is directed to be released on bail on furnishing
bail bond of Rs. 10,000/- (Rs. Ten Thousand) with two sureties of the
like amount each to the satisfaction of learned trial court [Additional
22Sessions Judge-II, Palamau] in connection with Sessions Trial Case
No. 105 of 2015.
26.11.2024 (Cr. A.(DB) No. 1168/ 2024)
12. Further, from paragraph 4 and 5 of the testimony of the informant
it appears that he has not taken the name of the present appellant in
alleged commission of crime rather he has taken name of other four
co-accused persons. Further at Para 39 of the cross-examination, he
specifically stated that he did not know the Awatar (appellant).
13. Further, it needs to refer herein that other co-accused person
namely Talash Kharwar @ Chutaria @Talash Khaewar @ Chutaria
who has also been convicted for the alleged offence under section
148,302/149 and 120B of the IPC, has been directed to be released on
bail by suspending his sentence by a co-ordinate Bench of this Court
in Cr. Appeal (DB) No. 1092 of 2022 vide order dated 30.01.2023.
14. This Court, considering the aforesaid facts and circumstances is of
the view that the appellant has been able to make out a prima facie
case for grant of bail by suspending his sentence.
07.02.2025 (Cr. Appeal (DB) No.1547 of 2024)
16. This Court, in view of the fact that the name of the appellant has
not been disclosed by the Informant, P.W.4 in the present case,
pertaining to sessions trial no.105(C) of 2015, while, the name of said
Awatar Khawar has not been disclosed by the informant who has been
examined in the case of Awatar Kharwar as P.W.6 and further, P.W.5
has also not disclosed the name of the present appellant, therefore,
this Court is of the view that the appellant has been able to make out
case for suspension of sentence.
Order Dated- 17.03.2025(Cr. Appeal (DB) No.1606 of 2024)
8. We, in order to examine the involvement of the present appellant
23
said to be identically placed with the cases of Talash Kharwar @
Chutaria @ Talash Khaewar @ Chutaria, appellant in Criminal
Appeal (DB) No.1092 of 2022, Awatar Kharwar, the appellant in
Criminal Appeal (DB) No.1168 of 2024 and Fantar Kharwar @
Hantar Kharwar, the appellant in Criminal Appeal (DB) No.1547 of
2024 respectively, have gone through the testimony of the witnesses
and has found that against the present appellant, the material has
come that she has prompted other co-accused to kill the deceased. The
other co-convicts since have been directed to be released on bail on
the ground of no direct involvement in the commission of crime of
rape or murder as has been alleged against Nawal Kharwar @ Niraj
Kharwar, Mithilesh Kharwar, Japshi Kharwar and Deepak as has
been deposed by the P.W.6, this Court is of the view that interlocutory
application i.e. I.A. No.1279 of 2025 is fit to be allowed.
01.07.2025 (Cr. Appeal (D.B.) No.457 of 2018)
23. We have mentioned about the place of occurrence primarily to
show that there was no source of light and also no possibility of any
source of light. The witnesses had claimed that the accused persons
were armed with torches and this enabled them to identify the
marauders. This would seem too far-fetched to be believable. This also
creates fissures of doubt over the case of the prosecution itself.
Another interesting feature is the evidence of P.W.11. His evidence
seems to suggest that he was nearest amongst all the eyewitnesses to
the place where the rape and murder of his wife was committed. He
was in fact beside the place where such occurrence had taken place
and incidentally though in his Fardbayan he had named the appellant
as one of the persons who had participated in the rape and murder of
his wife, but in his evidence he had not taken the name of the
appellant, but instead taken the name of one Chandan. If at all anyone
24
could have identified the appellant it was P.W. 11 considering his
proximity to the place of occurrence and when he had not taken the
name of the appellant the evidence of the other witnesses would not
have much bearing on such identification for the reasons we have
enumerated here in above. It is apparent from a plain reading of the
evidence of the witnesses that both the sides were not on very good
terms and therefore false implication of the appellant cannot be ruled
out. Moreover, all the witnesses of the prosecution are related to each
other and hence interested witnesses. The prosecution has failed to
adduce any independent witnesses including any villagers of
Gandhipur village. There has also been absence of any recovery of
any weapons used in the mayhem.
24. The aforesaid narration would lead us to conclude that the
identification of the appellant has not been convincingly established
by the prosecution and therefore on the basis of what has been stated
above, we hereby set aside the judgment and order of conviction and
sentence dated 18.01.2018 (sentence passed on 29.01.2018) passed by
Shri Satrunjay Kumar Singh, learned Additional Sessions Judge-IV,
Palamau at Daltonganj in connection with S.T. No.179/2010.
45. Thus, from the aforesaid orders it is evident that while allowing the
prayer for suspension of sentence of the aforesaid co-accused persons this
Court has taken into consideration their individual culpability in the alleged
commission of crime based upon the testimony of the witnesses particularly
informant.
46. From the order dated 01.07.2025 passed in Cr. Appeal (D.B.) No.457
of 2018, it is evident that the co-ordinate Bench of this Court, while
acquitting the co-accused Nawal Kharwar, took into consideration the fact
25
that there was no source of light at the place of occurrence and no
possibility of any such source being available. Consequently, the
identification of the said co-accused was not convincingly established by
the prosecution.
47. But, in the instant case it is evident from record that against the present
applicant the P.W.1 has specifically stated that Mithilesh Kherwar
(appellant/applicant herein) shot him with gunfire which hit his back. The
aforesaid fact has also been substantiated by P.W.6 i.e. informant who has stated
in his testimony that on that very night, accused persons came and had started
firing indiscriminately and in the firing, his brother Samrat Kharwar (P.W.1) was
hit with bullet.
48. This Court, is of the view that the specific attributability has been casted
upon the present appellant by the P.W.1 which has been substantiated by the
P.W.6 Informant, therefore, the case of the present appellant is not coming under
the fold of the principle of parity as such the benefit of parity cannot be extended
in favour of the present applicant.
49. Otherwise also it is settled position of law that the acquittal of a co-accused
in a separate appeal arise out from separate trial does not, ipso facto, entitle
another accused to suspension of sentence. While the acquittal of a similarly
placed co-accused on the same set of facts may be a persuasive circumstance to
be considered, but there cannot be an automatic acquittal or suspension of
sentence upon the remaining accused and if the allegations or evidence against
the appellant are distinct from co-accused who was acquitted, the acquittal of the
co-accused does not help the remaining accused.
50. The Hon’ble Apex Court in the case of Jagtar Singh v. State of Haryana,
26
(2015) 7 SCC 675 has categorically held that just because the co-accused was
acquitted of the charges, the benefit of the same cannot be also extended to
the appellant. For ready reference the relevant paragraphs of the aforesaid
judgment are being quoted as under:
“21. We are not impressed by the submission of the learned counsel for the
appellant when he urged that since the co-accused was acquitted of the
charges, hence the benefit of the same be also extended to the appellant.
22. As held above, the evidence on record in no uncertain terms proves that it
was the appellant who was the aggressor and hit the deceased. This evidence
was rightly made basis by the two courts to hold the appellant guilty for
committing the offence in question. When the evidence directly attributes the
appellant for commission of the act then we fail to appreciate as to how and
on what basis we can ignore this material evidence duly proved by the
eyewitnesses. Such was not the case so far as the co-accused is concerned.
The prosecution witnesses too did not speak against the co-accused and
hence he was given the benefit of doubt. It is pertinent to mention that the
State did not file any appeal against his acquittal and hence that part of the
order has attained finality.”
51. Further each case must be examined on its own merits, having regard to the
role attributed, the evidence adduced, and the stage of the proceedings. Further,
as per the settled position of law the appellate court is mandated to assess each
case individually under Section 389 of the Cr.P.C. (now section 430 of the BNSS,
2023), based on prima facie evidence.
52. Herein, since specific and direct attributability has been alleged against the
present applicant, as discussed and referred to hereinabove, this Court is of the
considered view that the acquittal of another co-accused, namely, Nawal
Kharwar, vide order dated 01.07.2025 passed by the co-ordinate Bench of this
Court in Cr. Appeal (D.B.) No.457 of 2018, will not come to the aid of the
present applicant/appellant.
27
Issue of custody
53. It has been contended that the present appellant has remained all along
in custody since 31.07.2017 till date for more than 8 years and 7 months,
therefore it has been submitted that, the prayer for suspension of sentence
made by the appellant may be considered.
54. So far as about 8 years and 7 months of custody against the sentence
of life imprisonment is concerned, it is settled position of law that merely
on the ground of custody, the sentence is not to be suspended, rather, the
custody can be one of the grounds coupled with the attributability of
accused as has been found and substantiated in course of trial.
55. It is the settled position of law that the period of custody cannot be
the sole ground for suspension of sentence, rather, the nature of crime as has
been found to be proved against one or the other, the appellant herein, is to
be taken into consideration and even if the convict has completed
substantive sentence, that cannot be a sole ground for suspension of
sentence if the nature of offence having been proved in course of trial is
serious.
56. The Hon’ble Apex Court in the case of Shivani Tyagi v. State of U.P.
& Anr. 2024 INSC 343 has categorically observed that mere factum of
sufferance of incarceration for a particular period and likelihood of delay in
disposal of cases, in a case where life imprisonment is imposed, cannot be a
reason for invocation of power u/s. 389 without referring to the relevant
factors and each case has to be examined on its own merits and based on the
given parameters.
28
57. It has further been observed by the Hon’ble Apex Court that the
factors like nature of the offence held to have committed, the manner of
their commission, the gravity of the offence, and also the desirability of
releasing the convict on bail are to be considered objectively and such
consideration should reflect in the consequential order passed under Section
389, Cr.PC. It is also relevant to state that the mere factum of sufferance of
incarceration for a particular period, in a case where life imprisonment is
imposed, cannot be a reason for invocation of power under Section
389 Cr.PC without referring to the relevant factors.
58. Further, it needs to refer herein that recently, the Hon’ble Apex Court
in the case of Chhotelal Yadav versus State of Jharkhand &Anr. (supra)
has specifically observed that while considering the plea for suspension of
sentence of life imprisonment is that the convict should be in a position to
point out something very palpable or a very gross error in the judgment of
the Trial Court on the basis of which he is able to make good his case that
on this ground alone, his appeal deserves to be allowed.
59. In the instant case, grave allegations stand against the present
appellant/applicant, that he has indulged in gang rape, murder, and killing
of the victim, and has further attempted to commit the murder of P.W.1.
This Court is, therefore, of the considered view that the alleged offences fall
within the category of heinous crimes. Accordingly, in light of the ratio laid
down by the Hon’ble Apex Court in Shivani Tyagi v. State of U.P. & Anr.
(supra), the prayer for suspension of sentence of the present applicant on
the ground of long incarceration is not fit to be allowed.
60. Thus, on the basis of discussion made hereinabove and taking into
29
consideration the specific attributability against the present appellant would
be evident from testimony of the P.W.1 having been corroborated by the
informant and further in the light of judgment rendered by the Hon’ble
Apex Court in the case of Janardan Ray Vs. The State of Bihar & Anr.
ETC. (supra) and in the case of Om Prakash Sahni Vs. Jai Shankar
Chaudhary and Anr., (supra), this Court prima-facie, is of the view that the
present interlocutory application is not fit to be allowed.
61. Accordingly, the instant interlocutory application stands dismissed.
62. Before parting with the matter, we may clarify that we may not be
understood to have expressed any opinion on merits of the matter one way
or the other and all the observations made by us hereinabove should be
taken as confined to dealing with the prayer of the applicant/appellant for
suspension of sentence under the relevant provision of BNSS, 2023. As and
when the main matter i.e. instant criminal appeal will come up for hearing,
it will be decided on its own merits without being inhibited or influenced by
the observations in this order.
(Sujit Narayan Prasad, J.)
(Sanjay Prasad, J.)
23.4.2026
KNR/–
