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2013 DIGILAW 145 (JHR)

Moti Lal Sah v. State of Jharkhand

2013-01-29

D.N.PATEL, SHREE CHANDRASHEKHAR

body2013
JUDGMENT 1. The present application has been preferred by applicant-Moti Lal Sah, who is appellant no. 1 in the Criminal Appeal and original accused No. 1 in the Sessions Case No. 142 of 2006. The present application has been preferred under Section 389(1) of the Code of Criminal Procedure for suspension of sentence awarded to him by 1st Additional Sessions Judge, Raj Mahal, Sahibganj in Sessions Trial No. 142 of 2006 vide order dated 30th March, 2007 mainly for the offence punishable under Section 302 to be read with Section 149 of Indian Penal Code for life imprisonment and also for other offences. 2. Having heard counsel for both the sides and looking to the evidences on record, there is prima facie, case against this applicant. As, the Criminal Appeal is pending, we are not much analyzing the evidence on record, but, suffice it to say that:– (a) Immediate is the First Information Report, the incident has taken place on 12.10.2005 and on the same day, within a couple of hours. First Information Report was lodged. (b) This applicant-Moti Lal Sah is named in the First Information Report. (c) The case of the prosecution is based upon several eye witnesses especially, upon P.W. 9, P.W. 10, P.W. 11, P.W. 15 and P.W. 16 Looking to the depositions of these eye witnesses it appears that they have clearly-narrated the role played by this applicant. Weapon, alleged in hand of this applicant, is sharp cutting instrument. They have also stated that this applicant has caused injury upon the body of the deceased namely Kartik Pandit. These evidences are constituting a prima facie case against this appellant. (d) The depositions of these eye witnesses are also getting further corroboration by other evidence on record especially by the deposition of P.W. 2, Doctor Dhirendra Kumar. There are injuries on the body which can be caused by sharp cutting instrument. (e) On earlier occasion, the prayer for suspension of sentence was rejected by this court vide order dated 15th January, 2008 and there is no change in the circumstance whatsoever, thereafter. 3. Counsel appearing for the applicant submitted that other appellants namely, Chotka Hunsda (appellant No.3) and Chunnu Rajwar (appellant No.4) have been granted bail by suspending the sentence vide order dated 15th January, 2008 and vide order dated 1st August, 2011. We have perused these orders. 3. Counsel appearing for the applicant submitted that other appellants namely, Chotka Hunsda (appellant No.3) and Chunnu Rajwar (appellant No.4) have been granted bail by suspending the sentence vide order dated 15th January, 2008 and vide order dated 1st August, 2011. We have perused these orders. Looking t6 the order dated 15th January, 2008, on earlier occasion, this Court has observed that as there was no specific allegation against appellant No.4, Chunnu Rajwar, the bail was granted to him. Looking to the evidence given by P.W. 9, P.W. 10, P.W. 11, P.W. 15 and P.W. 16, there is specific allegation against this applicant who is Moti Lal Sah who is appellant No. 2 in this Criminal Appeal. Hence, we are not inclined to suspend the sentence awarded to him. Similarly, we have perused the order passed by this court vide order dated 1st August, 2011. In this order also, there is a detail narration about the injury caused by Moti Lal Sah, present applicant, upon the body of the deceased. In the first paragraph of the said order, the role played by this applicant is also narrated by order dated 1st August, 2011. The second reason canvassed by the counsel for this applicant is that the appellant is in custody since October, 2005 and therefore, the sentence awarded to him be suspended. We are not agreeing with this contention that merely because he spent few years in jail, the sentence awarded to him should be suspended. All depend upon the evidence on record and the role played by this applicant in causing murder of the deceased. Looking to the evidences on record, the eye witnesses as stated herein- above, have clearly given name of this applicant, the weapon in the hand of this applicant which is sharp and all have stated that he has caused injuries upon the body of the deceased which is also getting enough corroboration by the other evidences led by the prosecution. Counsel for the appellant has also submitted that there is no allegation by the eye witness that on which part of the ~ the injury was caused by the applicant. We see no reason to suspend the sentence on this ground. There is no legal requirement that eye witnesses must specify the part of the body where injury was caused by this accused. We see no reason to suspend the sentence on this ground. There is no legal requirement that eye witnesses must specify the part of the body where injury was caused by this accused. Counsel for the appellant has argued the case at much length but we are not analyzing but suffice it to say looking to the evidence on record, there is a prima facie case against this applicant. 4. It has been held by the Hon'ble Supreme Court in the case of Khilari vs. State of U.P. and Another reported in AIR 2008 S.C. 1882 [: 2009(2) JLJR (SC)110] especially in paragraph 10, which reads as under:– "10. In Anwari Begum vs. Sher Mohammad and another (2005)7 S.C.C. 326 , it was, inter alia, observed as follows:– "7. Even on a cursory perusal the High Court's order shows complete non-application of mind. Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. 8. There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are:– 1. The nature of accusation and the severity of punishment in case of conviction arid the nature of supporting evidence; 2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; 3. Prima facie satisfaction of the Court in support of the charge. Any order de hors of such reasons suffers from non-application of mind as was noted by this Court in Ram Govind Upadhyaya vs. Sudarshan Singh and other (2002)3 S.C.C. 598 ; Puran etc. vs. Rambilas and another etc. (2001)6 SCC 338 and in Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav & another, JT 2004(3) SC 442." (Emphasis supplied) 5. vs. Rambilas and another etc. (2001)6 SCC 338 and in Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav & another, JT 2004(3) SC 442." (Emphasis supplied) 5. It has been held by the Hon'ble Supreme Court in the case of Ramji Prasad vs. Rattan Kumar Jaiswal and another, as reported in (2002)9 SCC 366 , in paragraph no. 3, as under:– "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 Indian Penal Code. The normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted." (Emphasis supplied) 6. It has been held by the Hon'ble Supreme Court in the case of State of Haryana vs. Hasmat, as reported in (2004)6 SCC 175 [ : 2004(3) JLJR (SC)281], in paragraph nos. 6 to 9, as under:– "6. 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 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. 7. 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 period the accused-respondent was granted parole. 8. The learned Sessions Judge, Gurgaon by a judgment dated 24.10.2001 had found the accused-respondent guilty. Criminal Appeal No. 100DB of 2002 was filed by the respondent. 8. The learned Sessions Judge, Gurgaon by a judgment dated 24.10.2001 had found the accused-respondent guilty. Criminal Appeal No. 100DB of 2002 was filed by the respondent. The fact that during the pendency of the appeal the accused-respondent was on parole goes to show that initially the accused-respondent was not given the benefit of suspension of execution of sentence. The mere fact that during the period of parole the accused has not misused the 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 was whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view. 9. In Vijay Kumar vs. Narendra and Ramji Prasad vs. Rattan Kumar Jaiswal it was held by this Court 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. The impugned order of the High Court does not meet the requirement. In Vijay Kumar case it was held that in considering the prayer for hail 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 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. These aspects have not been considered by the High court, which passing the impugned order." (Emphasis supplied) 7. It has been held by Hon'ble Apex Court in Khilari vs. State of Uttar Pradesh and Another reported in (2008) 11 SCC 180 [: 2009(2) JLJR (SC) 110] in paragraph nos. 4, 6, 12 and 13 reads as under:– 4. The only stand taken was that the ante mortem injuries on the body of the deceased included three contusions, one abraded contusion and four lacerated wounds of different dimensions on various parts of the body which could not have been caused by iron rods. It was their stand that some unknown assailants caused the injuries to the deceased. 6. The only stand taken was that the ante mortem injuries on the body of the deceased included three contusions, one abraded contusion and four lacerated wounds of different dimensions on various parts of the body which could not have been caused by iron rods. It was their stand that some unknown assailants caused the injuries to the deceased. 6. After noticing the rival stands the High Court by the impugned order granted the bail with the following conclusions:– 12. The extracted portion and the High-Court's order goes to show there was complete non-application of mind and non-consideration of the relevant aspects. 13. The impugned order, therefore, is not sustainable and it dismissed. The bail granted to Respondent 2 is cancelled. The matter is remitted to the High Court for fresh consideration in accordance with law. 8. In view of these facts and looking to the gravity of the offence, quantum of punishment and the manner in which the appellant is involved in the offence as alleged by the prosecution and also looking to the fact that previously also, the prayer for suspension of sentence was rejected by this Court and there is no change in circumstance whatsoever thereafter, we are not inclined to suspend the sentence, awarded by the Trial Court to the present applicant. 9. There is no substance in this I.A. No. 1795 of 2011, hence, the same dismissed.