(Manmohan and N.V. Anjaria, JJ.)
Rajesh Upadhayay _________________________________ Appellant;
v.
State of Bihar and Another _______________________ Respondent(s).
Criminal Appeal No._______of 2025 (@Special Leave Petition (Crl.) No. 8737 of 2025), decided on December 18, 2025
The Judgment of the Court was delivered by
N.V. Anjaria, J.:—
1. Leave granted.
2. The appellant-original complainant has questioned judgment and order dated 16.01.2025 of the Division Bench of the High Court of Judicature at Patna in Criminal Appeal (DB) No. 536 of 2024, whereby the High Court suspended the sentence imposed on respondent No. 2 and released him on bail during the pendency of the Appeal.
2.1. Respondent No. 2-Rajesh Mahto alias Rajesh Kumar Mahto son of Sheo Narayan Mahto, came to be convicted under Section 302 read with Section 149 of the Indian Penal Code, 1860 and sentenced to rigorous imprisonment for life with imposition of fine of Rs. 20,000/-, by learned Additional District and Sessions Judge, 19th Rohtas in Sessions Trial No. 101 of 2022. The respondent No. 2 was further convicted for the offence under Sections 342/149, IPC and sentenced to undergo rigorous imprisonment of one year and to pay fine of Rs. 500/-. In respect of conviction under Sections 147 and 504/149, IPC, sentence of one year for each offence and fine of Rs. 500 and Rs. 1,000/- respectively was imposed.
2.2. Respondent No. 2 came to be convicted also for the offence under Section 148, IPC, for which he was sentenced to rigorous imprisonment for a term of two years with fine of Rs. 1,000/-. Conviction was also recorded by the Sessions Court under Section 27 of the Arms Act and in respect thereof respondent No. 2 was sentenced to undergo rigorous imprisonment for a term of four years and to pay a fine of Rs. 3,000/-, with default clause.
3. The appellant-informant’s father named one Krishna Behari Upadhyay who was grandfather of respondent No. 2 was murdered. As per the prosecution story, on 11.12.2021 at about 4.30 p.m., the appellant along with his father Krishna Behari Upadhyay reached at Mahavir temple of the village to light ‘Diya’ and to do ‘Arti’. At that time, the accused persons and co-villagers Bashishthha Singh alias Munna Singh, Ajit Singh, Naga Kumar, Raghunandan Kumar and Rajesh Mahto-respondent No. 2 herein wielding the arms and weapons reached, at the temple. Hurling abuses, all of them surrounded the appellant and his father, telling said Krishna Behari Upadhyay that he was not performing Puja and was engaging in politics.
3.1. It is the further case of the prosecution that Pandit Krishna Behari Upadhyay tried to close the main gate of the temple, but the accused persons pushed the gate and made a forcible entry inside the temple. Ajit Singh and Raghunandan Kumar caught hold of Krishna Behari Upadhyay and Munna Singh is stated to have fired at him with a revolver. It was stated respondent No. 2 also had a country-made pistol with him and that he as well as his father Sheo Narayan Mahto were instigatively uttering that the Pandit should be killed as he was excessively indulging in politics. Because of gun fire shots, Krishna Behari Upadhyay fell down inside the temple premises and was in a pool of blood.
3.2. The appellant somehow managed to flee away from the place and informed his family members. Om Prakash Tiwari and Ritesh Mukhia who were the family members, as well as the other covillagers reached at the place of the offence. They saw Munna Singh, Ajit Kumar, Naga Kumar, Raghunandan Kumar and respondent No. 2-Rajesh Kumar Mahto alias Rajesh as also Sheo Narayan Mahto running away in the Eastern direction.
3.3. Upon being taken to the hospital, Krishna Behari Upadhyay was declared dead. A Fardbeyan was given by the appellant on 11.12.2021, pursuant to which the police registered the First Information Report No. 96 of 2021 for the offences under Sections 147, 148, 149, 341, 342, 504, 506, 302 and 120 (B), IPC, and for the offence under Section 27 of the Arms Act against the six persons, including respondent No. 2. On 02.02.2022, respondent No. 2 surrendered before the Trial Court. Chargesheet No. 9 of 2022 was filed on 28.03.2022.
3.4. The Sessions Court convicted and sentenced respondent No. 2 for the offences as mentioned above. In the appeal proceedings before the High Court, respondent No. 2 filed an application praying for suspension of sentence, which was allowed by the High Court and during the pendency of the appeal, respondent No. 2 was ordered to be released on bail, suspending the sentence imposed on him.
3.5. The High Court took the view that the role attributed to respondent No. 2 in the incident was of instigation, therefore the sentence could be suspended. Accordingly to the High Court, the First Information Report (FIR) was sent to the Magistrate’s court after three days and further that the original copy of the inquest report was not produced, which, stated the High Court, were also the factors entitling respondent No. 2-the convict to be released on bail during the pendency of the appeal.
4. Heard learned counsel Mr. Adarsh Kumar Tiwari for the appellant and Mr. Anshul Narayan, learned additional standing counsel for the respondent-State of Bihar.
5. There is no escape from the fact that respondent No. 2 is convicted under Section 302 read with Section 149, IPC and is imposed with sentence of rigorous imprisonment for life with payment of fine. He is also convicted for the offence under the Arms Act. Respondent No. 2 had undergone incarceration so far for three years. His appeal has been awaiting final outcome.
5.1. It is to be stated that along with respondent No. 2 herein, his father Sheo Narayan Mahto was also one of the accused. The High Court decided Criminal Appeal (DB) No. 542 of 2024 in respect of said accused Sheo Narayan Mahto and by a judgment and order dated 28.08.2024 suspended the sentence awarded to said Sheo Narayan Mahto. Like the present respondent No. 2, the said Sheo Narayan Mahto the father of respondent was also convicted for offence under Section 302 read with Section 149, IPC to undergo rigorous imprisonment for life and fine of Rs. 20,000/- and was also convicted similarly in respect of other offences under the IPC including for the offence under the Arms Act.
5.2. While suspending the sentence of the present respondent No. 2 as per the impugned judgment and order, the High Court relied on paragraph Nos. 4, 5, 6 and 7 from the order dated 28.08.2024 passed in Criminal Appeal (DB) No. 542 of 2024 and adopted the total reasoning of the said judgment and order in case of Sheo Narayan Madho. It is to be further noted that as recorded in the impugned order, prosecution conceded that the role attributed to the present respondent No. 2 was similar to the co-convict Sheo Narayan Mahto who was released by the High Court on bail as per order dated 28.08.2024.
5.3. The High Court in the impugned order observed while suspending the sentence and order awarded to respondent No. 2 herein and releasing him bail during the pendency of the appeal, thus:
‘We are of the view that the case of the appellant is similar to that of co-accused Sheo Narayan Mahto and, therefore, when the coaccused has been released on bail by this Court, the case of the appellant for grant of bail and for suspension of sentence requires consideration.’
5.4. According to the High Court, since the role of respondent No. 2 herein could also be said to be one of instigation only, like that attributed to said Sheo Narayan Mahto, present respondent No. 2 is entitled to be released on bail and his sentence is required to be suspended.
6. The said Sheo Narayan Mahto preferred Special Leave Petition (Criminal) No. 8736 of 2025. This Court by a separate judgment and order which is also pronounced today, set aside the said order and cancelled the bail granted to said Sheo Narayan Mahto. Respondent No. 2 herein sails in the same boat. The role attributed to present respondent No. 2 in the entire commission of crime in the crime scenario is said as that of Sheo Narayan Mahto. Same set of facts and circumstances apply to respondent no. 2 herein while considering the present appeal by the appellant information which seeks cancellation of bail granted to respondent No. 2.
7. In the above view, the order of suspension of sentence passed in favour of respondent No. 2 as well as bail granted to him by the High Court deserves to be cancelled for the very reasons recorded in the judgment and order of this Court in the Special Leave Petition (Criminal) No. 8736 of 2025 pronounced today. The discussion supplied and reasons recorded in the abovesaid judgment and order dated 17.12.2025 in paragraphs 5.1 to 09 would apply to the case of respondent No. 2 herein and the same shall be treated to as part of this order.
8. It has to be held that the High Court should not have suspended the sentence and release respondent No. 2. A clear error was committed by the High Court. The participation and role played by respondent No. 2 in the entire commission of offence has to be viewed as grave and could not have been discounted for its seriousness to suspend his sentence imposed upon conviction under Section 302 read with Section 149, IPC.
9. It goes without saying that observations in this order are limited to the aspect of suspending the sentence of respondent No. 2 and releasing him on bail, not to influence the course of merit of the trial.
10. For foregoing reasons and discussion, impugned judgment and order of the High Court dated 16.01.2025 suspending the sentence of respondent No. 2 is hereby set aside. Respondent No. 2 [Rajesh Mahto alias Rajesh Kumar Mahto son of Sheo Narayan Mahto] is directed to surrender within ten days. The police authorities shall ensure that said respondent No. 2 is sent behind the bars within the above time permitted for surrendering.
11. The present appeal is accordingly allowed.
In view of disposal of the Appeal, the interlocutory applications, if any, shall not survive.
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