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2008 DIGILAW 1265 (PNJ)

Shishu Pal Singh v. State of Haryana

2008-07-24

ADARSH KUMAR GOEL, RAJAN GUPTA

body2008
JUDGMENT Rajan Gupta, J 1. The present application has been moved by Shishu Pal Singh @ Shish Pal under Section 389 of the Code of Criminal Procedure, praying for suspension of his conviction pending appeal before this Court. The applicant has been convicted under Sections 302/34 IPC read with Section 120-B IPC, for which he has been sentenced to undergo life imprisonment and to pay a fine of Rs. 5000/-, in default whereof rigorous imprisonment for six months. 2. The allegations against the applicant/appellant are that he along with other three accused murdered one Mehtab Singh. The trial Court recorded a finding that Mehtab Singh was unmarried and owned property. The accused did not deny that they were collaterals of the deceased and some of the property of the deceased had been in possession of the applicant-accused and another accused Karam Singh. Even the weapon of offence i.e. country made pistol was recovered from the house of the applicant herein, Shishu Pal. 3. Applicant-accused Shishu Pal, inter alia, set up a plea of alibi, which was not accepted by the trial Court and he was convicted and sentenced, as aforementioned. 4. The applicant before this Court has relied upon a number of judgments in order to contend that his conviction deserves to be suspended during the pendency of appeal. 5. For this purpose, in his application, he has pointed out various discrepancies and infirmities in the prosecution evidence to derive home the point that he was innocent in the case. 6. However, we are unable to accept the contention of the learned counsel as the power under Section 389 Cr.P.C. to suspend the conviction during pendency of appeal is to be exercised in rare and exceptional circumstances. 7. One of the main judgments, on which the learned counsel has placed reliance, is Navjot Singh Sidhu v. State of Punjab, reported as 2007(1) R.C.R.(Criminal) 836. However, a perusal of the said judgment shows that the accused in the said case had, in fact, been acquitted by the court below. His acquittal was set-aside by the High Court on an appeal preferred by the State. Pursuant to his conviction by the High Court, the accused, who was a member of the Parliament at the relevant time, had resigned from the membership of the Parliament on moral grounds. 8. His acquittal was set-aside by the High Court on an appeal preferred by the State. Pursuant to his conviction by the High Court, the accused, who was a member of the Parliament at the relevant time, had resigned from the membership of the Parliament on moral grounds. 8. Keeping in view the entire facts and circumstances of the case, the Apex Court had deemed it fit to suspend the order of conviction and sentence during pendency of appeal. 9. However, the Apex Court had not overruled the law laid down in the cases reported as State of Tamil Nadu v. A. Jaganathan, (1996) 5 SCC 329 and K.C. Sareen v. C.B.I., Chandigarh, 2001(3) RCR ( Crl.) 718. Both the judgments were, however, distinguished by Their Lordships. In fact, the Apex Court was pleased to reiterate the proposition of law laid down in its various decisions that an order granting stay of conviction is not a rule, but is an exception to be resorted to in rare cases depending upon facts of a case. Where the execution of sentence is stayed, the conviction continues to operate. However, when an order of conviction is stayed, the conviction becomes inoperative for the time being. Learned counsel has also referred to certain other judgments such as Smt. Akhtari Bi v. State of M.P., 2001 (2) R.C.R. (Criminal) 302 and Retti Deenabandu and others v. State of Andhra Pradesh, S.C.C. (Cri.) 173. We have perused the said judgments. These judgments do not at all deal with the question of suspension of conviction under Section 389 Cr.P.C. 10. Another judgment cited by the counsel is Padam Singh v. State of U.P., 2001 (1) R.C.R. (Criminal) 138, which, inter alia, lays down that presumption of innocence with which the accused starts, continues right through until he is held guilty by final court of appeal. However, this judgment is also not applicable as it does not deal with an application under Section 389 Cr.P.C. On the other hand, this judgment is concerning the final appeal to be decided in a criminal case and lays down guidelines for the same. 11. However, this judgment is also not applicable as it does not deal with an application under Section 389 Cr.P.C. On the other hand, this judgment is concerning the final appeal to be decided in a criminal case and lays down guidelines for the same. 11. Learned counsel has also referred to certain Single Bench judgments of this Court such as Roop Singh v. State of Punjab 2005 (2) R.C.R. (Criminal) 799, Tarsem Singh v. State, Chandigarh Administration, 2006 (1) R.C.R. (Criminal) 831 and Jasminder Kaur v. State of Punjab, 2006 (4) R.C.R. (Criminal) 315. A perusal of all these judgments shows that the court came to a firm conclusion that in the facts and circumstances of the case, the conviction of the accused deserves to be stayed. None of these judgments lays down that the evidence against an accused has to be sifted for the purpose of deciding whether his conviction should be suspended during the pendency of the appeal. 12. Undoubtedly, it is settled law that this Court has the power to suspend the conviction during the pendency of the appeal. However, there can be no dispute with the proposition that the suspension of conviction remains an exception and not the rule. 13. None of the judgments cited by the learned counsel for the appellant, therefore, helps him in any manner, as the same are almost consistent that the power of suspension of conviction pending appeal has to be exercised in exceptional cases. 14. On the other hand, we have come across a Division Bench Judgment titled as “Prem Kumar v. State of Punjab” delivered in Crl. Misc. No.101430 of 2007 in Crl. Appeal No.531-SB of 2001, which further emphasises that discretion for suspension of conviction is to be exercised in exceptional cases. Though the said judgment has been delivered under the Prevention of Corruption Act, the conclusion arrived by Their Lordships is reproduced here in below:- “13. Misc. No.101430 of 2007 in Crl. Appeal No.531-SB of 2001, which further emphasises that discretion for suspension of conviction is to be exercised in exceptional cases. Though the said judgment has been delivered under the Prevention of Corruption Act, the conclusion arrived by Their Lordships is reproduced here in below:- “13. While answering the reference, we hereby conclude that the following, individually, as well as, collectively, do not constitute an “exceptional circumstances” for purposes of suspension of conviction (under the provisions of the Prevention of Corruption Act, 1988), in terms of the law laid down by the Supreme Court : Firstly, that the sentence imposed on the appellant had already been suspended by the trial Court; Secondly, that in case the order of conviction of the appellant is not suspended, he will be dismissed from service; Thirdly, that it would take a long time to decide the appeal; Fourthly, that there are fairly good arguable points. We also hereby conclude that the discretion for suspension of conviction (under the provisions of the Prevention of Corruption Act, 1988), can be exericed only in “exceptional cases” i.e., where the prosecution of the accused is shown as based on “malafides” or on account of “bad faith” or such/similar other exceptional ground(s). The instant reference is, therefore, answered in the aforesaid terms.” 15. In the facts and circumstances of the present case, we do not deem it to be a fit case for suspension of conviction. The trial Court has categorically held that accused Shishu Pal was guilty of murder of Mehtab Singh and he had committed the same in active connivance with his other co-accused. 16. In our view, it is not open to the accused to point out discrepancies in the evidence at this stage or to assail the impugned judgment of conviction as a whole for the purpose of pressing his application for stay of conviction. 17. Though it has been well settled by now by various judicial pronouncements that this Court has power under Section 389 Cr.P.C. to stay the conviction during the pendency of appeal, yet the law is clear on the point that it can be resorted to only in rare and exceptional cases, depending upon special facts of a case. 18. The applicant has not been able to show any exceptional circumstance, where failure to stay the conviction would lead to injustice and irreversible consequences. 19. 18. The applicant has not been able to show any exceptional circumstance, where failure to stay the conviction would lead to injustice and irreversible consequences. 19. In any case, we are also of the view that that in heinous crimes, such as murder, the parameters to consider an application for suspension of conviction ought to be stricter and more rigorous. In heinous crimes, the criteria for grant of suspension of conviction would be more stringent. 20. There is a clear cut distinction between suspension of sentence and suspension of conviction. The standards for the latter are totally different as the two stand on different footing. Power to suspend conviction has to be exercised sparingly, particularly in serious crimes, such as murder. 21. A person convicted of a serious crime is kept under the disability of conviction during the pendency of appeal. All his pleas of having been wrongly held guilty and convicted, cannot be gone into in an application under Section 389 Cr.P.C. We, thus, find no merit in this application. The same is hereby dismissed. Application dismissed.