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2009 DIGILAW 530 (PAT)

Rajesh Ranjan @ Pappu Yadav v. State Of Bihar

2009-04-02

DHARNIDHAR JHA, SHIVA KIRTI SINGH

body2009
JUDGEMENT 1. I. A. No. 471 of 2009 The appellant Rajesh Ranjan alias Pappu Yadav has filed the present interlocutory application under Section 389 of the Code of Criminal Procedure praying therein to suspend/stay the order of conviction dated 14th February, 2008 by which he was found guilty of committing the offence punishable under Section 302 read with Section 120B of the Indian Penal Code and was directed to suffer rigorous imprisonment for life as also to pay a fine of Rs. 10000 (ten thousand), in default whereof he was directed to undergo rigorous imprisonment for one year. The above judgment and order of conviction and sentence was passed by the Additional Sessions Judge-XI, Patna in Sessions Trial No. 976 of 1999. 2. The case related to the murder of one Ajit Sarkar by the accused persons in conspiracy with each other on 14th June, 1998 for which K. Hat Police Station Case No. 230 of 1998 was registered against six- seven unknown persons. The investigation of the c;.ase was transferred to the CBI and, accordingly, R.C. Case No. 12(S) of 1998 was registered which ended in forwarding of the appellant and other accused persons who were tried alongwith the petitioner on the above noted Sessions Trial which ultimately resulted in the order of conviction as indicated above passed on 14th February, 2008. 3. We have heard Sri R.K. Anand, and Sri Majid Memon, Senior Advocates appearing for the appellant in the present Interlocutory Application. We have also heard Sri Bipin Kumar Sinha, Special Public Prosecutor for the C.B.I 4. It was contended on behalf of the appellant that the appellant has not been found committing the murder of Ajit Sarkar directly by doing a specific act by that direction, rather he was found guilty of committing the offence under Section 302 read with Section 120B of the Indian Penal Code and that conviction was recorded singly against the appellant. By drawing the courts attention towards the provision of Section 120B of the Indian Penal Code, it was contended that at least two persons committing an act which could be illegal or which could not be illegal by legal means, could only be said to have conspired, whereas the appellant was solely convicted for the offence under Section 120B of the Indian Penal Code. It was contended in this connection that the evidence was too feeble to justify the conviction and that too was coming through confessional statement of a coaccused, namely, Rajan Tiwari, which evidence could be debated as not admissible against the other accused. It was further contended in the above connection that the confession was recorded by the Chief Metropolitan Magistrate, Delhi when said Rajan Tiwari was arrested in connection with other offence and that was treated to be voluntary and it was contended that the facts constituting an offence, coming through confession, could not be a material evidence, strong enough to record the conviction. It was contended that the appellant being a practicing politician, having been the Member of the Lok Sabha on account of being elected on many occasions, had many political foes who could have implicated him for the reasons other than furthering the ends of justice. 5. Mr. Anand and Mr. Memon, the learned counsel for the appellant took us through different paragraphs of the judgments in which the said confession of Rajan Tiwari has been discussed by the learned trial judge to submit that the findings and reasonings recorded in support thereof appear simply unreasonable. Lastly, Sri Memon and Sri Anand drew the attention of the court towards Section 8(4) of the Representation of People Act, 1951 which deals with disqualification of a sitting Member of any legislature of a State or a Member of Parliament on account of being convicted and being sentenced to undergo imprisonment for two years or more and again the effect of preferring an appeal or revision against the order of conviction before the appropriate court and it was contended that if the appellant could not be disqualified under that particular provision of The Representation of People Act, then it will be simply a travesty of justice that the chances of his being elected in the ensuing parliamentary elections, 2009 are snatched from him by virtue of an illegally recorded conviction and unreasonable infliction of sentence upon him. Sri Anand drew our attention to a Supreme Court decision in the case of K. Prabhakaran vs. P. Jayarajan, reported in (2005)1 Supreme Court Cases 754, specially to paragraph 60 of the report, and contended that it has been held that once a House has been dissolved and the person has ceased to be a member, on the date of filing of the nomination there is no difference between him and any other candidate who was not such a member and further that treating such two persons differently, would be arbitrary and discriminatory and incur the wrath of Article 14 of the Constitution of India. Sri Anand also attacked the evidentiary value of the judicial confession made by co accused Rajan Tiwari and branded the statement as one which could be mere statement under Section 164 of the Code of Criminal Procedure and which could not be attached the weight of evidence. Sri Memon, appearing formn the appellant had also contended that this court directed the release of the appellant on bail by order dated 18.2.2009 passed in the main Criminal Appeal and if the appellant was entitled to be released on bail, there was no harm if the conviction and the sentence passed upon the appellant be stayed till the disposal of the present appeal so that the appellant could contest the ensuing parliamentary elections. 6. Mr. Bipin Kumar Sinha, learned Special Public Prosecutor, appearing for the C.B.I., also took us through different paragraphs of the impugned judgment and specially those in which the evidence of confession recorded by the Chief Metropolitan Magistrate, Delhi of Rajan Tiwari has been discussed in connection with other materials and submitted that there was ample materials suggesting that the murder of Ajit Sarkar was committed clearly in conspiracy and as per the designs of the appellant and as such, the conviction was properly recorded and appropriate sentence was inflicted. Learned counsel further contended that the appellant bears a huge criminal history of being accused in nearly twenty cases and in some of which he is still undergoing trial. The trial of other accused persons who had conspired with the present appellant in killing Ajit Sarkar was progressing before the trial court and it could not be said that the provision in respect of conspiracy for which the appellant has been convicted was not attracted. 7. The trial of other accused persons who had conspired with the present appellant in killing Ajit Sarkar was progressing before the trial court and it could not be said that the provision in respect of conspiracy for which the appellant has been convicted was not attracted. 7. Section 389 of the Code of Criminal Procedure reads as follows: "389. Suspension of sentence pending the appeal; release of appellant on bail. (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall, (i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under subsection (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during Which he is so released shall be excluded in computing the term for which he is so sentenced." 8. A perusal of the above provision indicates that it creates twin jurisdiction in an appellate court. By Virtue of sub-section (1) of Section 389 of the Code of Criminal Procedure, a power is vested in the appellate court to order the suspension of the execution of the sentence or order of conviction appealed against and also of releasing him from custody on bail or on his own bond. By Virtue of sub-section (1) of Section 389 of the Code of Criminal Procedure, a power is vested in the appellate court to order the suspension of the execution of the sentence or order of conviction appealed against and also of releasing him from custody on bail or on his own bond. Secondly, the remaining provisions contained In the two provisos and in sub-sections (3) and (4) relate to the power of appellate court and the manner in which the prayer for bail of such convicted appellant could be heard and terms and conditions on which the order of bail could be passed in favour of an appellant in a pending appeal. Sub-section.(2) of Section 389 of the Code of Criminal Procedure vests the same power of suspending the conviction and sentence in the High Court in respect of a convicted person who has preferred an appeal and who have been sentenced by any court which could be subordinate to such a High Court. Sub-section (4) is in respect of computing the term for which a convicted person shall be sentenced on dismissal of the appeal after its ultimate disposal and according to it, the period during which such an appellant could be on bail, that period shall have to be excluded in computing the total period of sentence such appellant shall have to suffer. 9. On a careful consideration of Section 389(1) of the Code of Criminal Procedure, one could find that for granting a prayer under that Section, the appellate court shall have to record reasons in writing. It goes without saying that if the appellate court finds itself not inclined to grant the prayer, then also the reasons have to be assigned therefor. The other construction which could be put upon the provision of Section 389(1) of the Code of Criminal Procedure, in our considered view, is that as soon as the legislature mandated the assigning of reasons tor allowing the prayer of suspending the execution of the order of sentence or order of conviction, the appellant shall have to make out some special case in that behalf and it could not be in all cases that the appellate court could be proceeding to allow the prayer and suspend the order of conviction and sentence. This could probably be the reason for the Supreme Court to lay down the law in the above terms in the case of Ravi Kant S. Patil vs. Sarvabhouma S. Bagli, reported in (2007) 1 S.C.C. 673 that "an order granting stay of a conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent but only non-operative". Thus, one has always to be careful in such a case to find out as to yvhat exceptional circumstances appear from the facts of a case so as to legitimizing the exercise of the powers in favour of the appellant by directing the stay of execution of his conviction or sentence. The reasons to be assigned for holding that an exceptional case was made out on account of some exceptional circumstances arising from the facts of the case, the court may consider the evidence on record and may also in a cursory manner consider the findings of the court, not with the same alertness and application as is required by an appellate court for deciding the appeal, rather with a limited purpose of reading out the circumstances which may bring the case into one which could be a rare case in which the power could be exercised or which could bring the case out of the purview of Section 389(1) of the Code of Criminal Procedure so as to negate the prayer. 10. 10. Learned counsel for the appellant very often made references to the case of Navjot Singh Sidhu vs. State of Punjab, reported in (2007)2 Supreme Court Cases 574 [: 2007(1) PLJR (SC)329] In that case, the appellant before the Supreme Court had made a prayer of the same nature as presently made before us in the present appeal and the Apex Court after noticing the important cases decided by them also considered the circumstances attending upon the case including some important evidence and action of the appellant Navjot Singh Sidhu in forthwith resigning his Membership of the parliament on moral grounds after his acquittal by the said trial court was upset by the High Court. It was noted that the appellant could have continued as a Member of Parliament by virtue of the right created in him by Section 8(4) of Representation of People Act but he chose to act on moral plank and resigned his seat and was seeking the protection of Section 389(1) of the Code of Criminal Procedure so as to contesting the elections again after his appeal had been admitted by the Supreme Court. The further circumstances which were considered by the Apex Court in the above noted case of Navjot Singh Sidhu was that the appellant did not have any motive for committing the offence and injury was so superficial as not to be sufficient to cause death and further that there was some conflict between some important documents as regards giving the blow by Navjot Singh Sidhu upon the deceased. After considering the above circumstances and facts of the case, the Apex Court came to a conclusion that it could be an exceptional case in which the Supreme Court could exercise the powers under Section 389 (1) of the Code of Criminal procedure to suspend the conviction and sentence passed upon Navjot Singh Sidhu. 11. Here, in the present case, there is no direct evidence that the appellant had conspired with other accused persons and above all, with accused Rajan Tiwari but it is well known that it is very difficult to get the evidence of conspiracy because the conspirators can make every endeavor to keep it as secret as it could be. The circumstances could be there or the same could appear from the admissions or confession or from the evidence of witnesses. The circumstances could be there or the same could appear from the admissions or confession or from the evidence of witnesses. Here, in the present case, Rajan Tiwari was arrested in Delhi and he confessed to the facts constituting his participation in the offence of committing murder of Ajit Sarkar. He has very clearly stated the whole facts in his confession which has been dealt with by the learned trial court in paragraph 15 of the judgment by extracting the whole of it. The effect of the confession has been dealt with in paragraphs 21, 24, 25 and 30 of the judgment along with other attending circumstantial evidence like the print out of different telephone calls including that which was installed in the house of the present appellant in Delhi and all those could indicate that indeed Rajan Tiwari was in touch with the appellant at some important time and was getting commands from the appellant as regards the execution of the offence. Accused Rajan "tiwari had stated that after he had accomplished the job, he again contacted the appellant by phone through a public call booth and the appellant asked him to go and make merry and, accordingly, he went to Darjeeling and, accordingly stayed there for some days. He subsequently learnt that the appellant was planning to eliminate Rajan Tiwari himself so as to wiping out the evidence of his participation and as such decided to spill the beans. 12. As we have noted above, there were print outs taken out by the C.B.I., of different telephone connections including those of the booth and the residence of this appellant in Delhi and other places and it was satisfactorily found that the time and date on which Rajan Tiwari had contacted the appellant was tallying with his details. 13. 12. As we have noted above, there were print outs taken out by the C.B.I., of different telephone connections including those of the booth and the residence of this appellant in Delhi and other places and it was satisfactorily found that the time and date on which Rajan Tiwari had contacted the appellant was tallying with his details. 13. A confession made by an accused may not be admissible against a co-accused but if one could consider the provision of Section 10 of the Indian Evidence Act, one could find that if there is reasonable ground to believe that two or more persons had conspired together to commit an offence, anything said, done or written by anyone of such persons in reference to their common intention, after the time when such intention was first entertained by anyone of them, was a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of conspiracy as for the purpose of showing that any such person was a party to it. This Section makes the confession of a co-accused or the words or acts spoken or committed by him or any of his co-conspirators admissible and relevant. This could be the reason that the court was reading the confessional statement of Rajan Tiwari in consonance with the circumstances which appear through different printouts and circumstances to record the guilt of the appellant. 14. A confession simplicitor is a very weak evidence as was rightly pointed out by the learned counsel for the appellant but if the court finds acceptable circumstances supporting such confession, there may not be any harm in using it for recording a conviction, ample credence has to be given to the same. The learned trial judge has rightly done the same. 15. Offence of murder is heinous. But when one hires killers, plans it and gets the plan executed as meticulously as in the present case, the very quality of the man and his deeds are reflected if it is for eliminating a supposed or even real political foe, it assumes a very serious proportion and it could be said that the act was really criminal and the man a real criminal. This gets more serious when one considers that the appellant is accused in more than a dozen of cases of serious nature. This gets more serious when one considers that the appellant is accused in more than a dozen of cases of serious nature. The man could be said to be a habitual killer and criminal. 16. While we were being addressed by learned two counsel of the appellant, Sri Memon placed before us a typed copy of a judgment, said to be delivered by the High Court of Allahabad in Cri. Misc. Application No. 907 of 2007 in Cr. Appeal No. 1044 of 2000 and it was contended that Allahabad High Court has also held that the power under Section 389 of the Code of Criminal Procedure should be exercised only in exceptional and rare circumstances and where non-grant of stay would lead to injustice and irreversible consequence. Fighting an election may be a democratic right of a citizen but his wishes of being elected in the election cannot be categorized as any of his rights. In politics, one could not say that his position is irreversible. A person could be holding the highest office of the executive one day but by sheer change in political circumstances, he might be finding himself out of that position and as a mere Member or even as no Member of the House of any legislature or Parliament. Likewise, one could have won and could have been elected as a Member of the Parliament in one particular election, but in the other, he might not be winning the elections or the worst of the possibility could be that if he is affiliated to any particular political party, then that party may not consider him to be fit for being fielded as its candidate in any constituency. Thus, the plea of irreversible consequence appears of no benefit to the appellant. Injustice could not be said to be inflicted upon any one merely because the court has a definite opinion on a particular issue under the special facts and circumstances of the case rather the court could be justified in passing a particular order. 17. It was initially contended by Sri Memon that conspiracy could not be a single-mind act, it necessarily envisages meeting of two or more minds at one point and deciding to do an act. 17. It was initially contended by Sri Memon that conspiracy could not be a single-mind act, it necessarily envisages meeting of two or more minds at one point and deciding to do an act. The earlier orders passed in this appeal, specially the one dated 18.2.2009 by which the appellant was admitted to bail indicates that other accused persons are facing trial in the same case in a separated trial bearing S.T. No. 976 of 1999. Besides, at least two minds were meeting when the impugned judgment was passed, Rajan Tiwari was conspiring on account of being in regular touch with the appellant and he accomplished the goal fixed by the appellant. Thus, the offence of conspiracy could not be said to be not constituted. 18. Recording of confession which was branded as a mere statement by Sri Anand is envisaged by Section 164 of the Code of Criminal Procedure and if one considers the procedure adopted by the Chief Metropolitan Magistrate, Delhi in recording the confessional statement of Rajan Tiwari, one could find that the law on confession and the procedure set down was fully and completely followed by the learned Magistrate. 19. It was contended by the learned Special Public Prosecutor, C.B.I, that the appellant bears criminal antecedent. The appellant is facing trial in various courts at various places, it may not be relevant for the purpose of Section 389 of the Code of Criminal Procedure but it may give an impression as to what character the appellant could be. 20. After having considered the prayer in the light of the special facts of the case, we are of the opinion that the prayer made by the appellant for staying the conviction and sentence passed against him by the learned trial judge through the impugned judgment is not fit to be stayed in the interest of justice. 21. I.A, No. 471 of 2009 is accordingly dismissed. The prayer is refused. 22. We, however clarify that the findings are not final and conclusive but onIy for the present interlocutory matter.