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Rajasthan High Court · body

2010 DIGILAW 1525 (RAJ)

Mohammad Shakeel v. State of Rajasthan

2010-08-20

RAGHUVENDRA S.RATHORE

body2010
Hon'ble RATHORE, J.—Heard the learned counsel for the appellant as well as the learned Public Prosecutor. 2. The learned counsel for the accused-appellant has submitted that there is no evidence on record to the effect that there was any demand of dowry soon before death. Further, he has submitted that the conviction awarded to the accused-appellant is only on the basis of presumption under Section 113-B of the Evidence Act. He has also submitted that a perusal of the impugned judgment passed by the trial Court reveals that the husband-appellant had not murdered his wife Afsana B. The learned counsel for the appellant has also submitted that in this case the accused was arrested on 31.5.2006 and as such he is in custody for more than four years by now whereas the sentence awarded to him is of seven years rigorous imprisonment. The appeal is not likely to be decided in near future. Therefore, it has been submitted by the counsel for the appellant that the sentence awarded to the accused be suspended during the pendency of appeal. In support of his submission, he has placed reliance on the case of (1) Bhagwan Rama Shinde Gosai & Ors. vs. State of Gujarat, 1999 Cr.L.R. (SC) 345, (2) Shailendra Kumar vs. State of Delhi, 2001(1) SRJ 332 and (3) Kamal vs. State of Haryana, (2004) 13 SCC 526 . 3. On the other hand, the learned Public Prosecutor has opposed the application for suspension and submitted that a serious offence has been committed by the accused-appellant. He has also submitted that learned Court below has rightly convicted the accused-husband for the offence under Section 304-B IPC. Therefore, he has submitted that application for suspension of sentence deserves to be dismissed. 4. I have given my anxious and thoughtful consideration to the submissions made by counsels for the rival parties and have carefully perused the material on record of the learned trial Court as well as the impugned judgment dated 17.7.2007. In this case, the marriage of the accused-appellant with Afsana B. was solemnized on 21.2.2003. The incident had taken place on 31.5.2006 and the wife Afsana B. was done to death by the accused appellant by strangulation with `Dupatta'. The death of wife Afsana B. had taken place at the residence of the accused. In this case, the marriage of the accused-appellant with Afsana B. was solemnized on 21.2.2003. The incident had taken place on 31.5.2006 and the wife Afsana B. was done to death by the accused appellant by strangulation with `Dupatta'. The death of wife Afsana B. had taken place at the residence of the accused. So far as the submission with regard to the evidence on record relating to ingredients of the offence under Section 304-B IPC or the presumption under Section 113-B of the Evidence Act is concerned, I am of the view that the same would be appreciated at the time of final hearing of the appeal. However, for the purpose of considering the application for suspension of sentence, there is prima-facie evidence on record and the finding of the learned trial Court. 5. As regard, the last submission made by the counsel for the appellant in respect of the substantial period of sentence having already been served by the accused-appellant and that the appeal is not likely to be decided in near future, the sentence award to him should be suspended during the pendency of appeal, I am of the opinion that each case has to be considered in accordance to gravity of the offence and its peculiar facts and circumstances. The aforesaid precedents cited by thee learned counsel for the accused appellant have been carefully considered by me and also the latest judgment passed by Hon'ble Supreme Court in the case of Rabindra Nath Singh vs. Rajesh Ranjan @ Pappu Yadav & Anr., (2010) 6 SCC 417 . The gravity and seriousness of the offence and the manner in which the incident had taken place, is certainly a factor which deserves attention while considering the application for suspension of sentence. 6. The principle of law with regard to grant of bail/suspension of execution of sentence, during the pendency of appeal and the fact to be considered at that time is well settled since long. The Hon'ble Apex Court in the case of State of Maharashtra vs. Anand Chintaman Dighe, (1990) 1 SCC 397 had observed in para 7, as under:- "7. There are no hard and fast rules regarding grant or refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the Court. There are no hard and fast rules regarding grant or refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the Court. Where the offence is of serious nature the Court has to decide the question of grant of bail in the light of such considerations as the nature and seriousness of offence, character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of presence of the accused not being secured at the trial and the reasonable apprehension of witness being tampered with, the larger interest of the public or such similar other considerations." Later in the year 2000 while deciding the case of Ramji Prasad vs. Rattan Kumar Jaiswal & Anr. on 18.4.2000, reported in (2002) 9 SCC 366 , the Hon'ble Supreme Court had held thus:- "3. Absolutely no reason is shown by the learned Single Judge for adopting this exceptional course in a case where an accused was found guilty by the trial Court under Section 302 of the India Penal Code. The normal practice in such cases is not to suspend the sentence are it is only in exceptional cases that the benefit of suspension of sentence can be granted." The principle was later on followed in the case of Vijay Kumar vs. Narendra & Ors., (2002) 9 SCC 364, wherein it was held that:- "....The principle is well settled that in 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 the nature of the 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..." Again in the case of State of Haryana vs. Hasmat, (2004) 6 SCC 175 , the Hon'ble Supreme Court had followed the principle of law laid down in the cases of Vijay Kumar (supra) and Ramji prasad (supra). 7. 7. In the case of Kishori Lal vs. Rupa & Ors., (2004) 7 SCC 638 = RLW 2004(4) SC 592, the Hon'ble Supreme Court, while considering the question of suspension of sentence pending the appeal and the powers of the appellate court, had laid down that:- "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. If he is in confinement, the said court can direct that the 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 weighted 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." 8. In the case of Bakshish Ram & Anr. vs. State of Punjab, (2009) 6 SCC 561 , after considering the earlier judgments, the Hon'ble Supreme Court had laid down as under:- "10. It is clear from the various decisions of this Court as stated above that, cases where a serious offence had been committed and the accused had been held guilty for the said offence, then his application for grant of bail should not be decided leniently during the pendency of the appeal. The seriousness and gravity of the offence must be looked into before granting the bail. In the instant case, accused are convicted by the Trial Court the instant case, accused are convicted by the Trial Court for harassing, torturing and compelling the deceased to end her life by committing suicide, and the said conviction is confirmed by the High Court." 9. In the instant case, accused are convicted by the Trial Court the instant case, accused are convicted by the Trial Court for harassing, torturing and compelling the deceased to end her life by committing suicide, and the said conviction is confirmed by the High Court." 9. In view of the above consistent principle of law laid down by the Hon'ble Supreme Court and taking into consideration the facts and circumstances of the present case, I do not find any just reason for considering the question of suspension of sentence of the accused-appellant during the pendency of appeal. 10. Consequently, the application for suspension of execution of sentence awarded to the accused appellant is dismissed.