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2013 DIGILAW 184 (JHR)

Lal Singh Bhumij v. State of Jharkhand

2013-02-05

D.N.PATEL, SHREE CHANDRASHEKHAR

body2013
Order Per D.N. Patel, J. Present appeal has been admitted vide order dated 14th January, 2013. 2. Record and proceedings of Sessions Trial No. 147 of 2008 was called for from the Trial Court so as to appreciate the argument for suspension of sentence under Section 389 of the Code of Criminal Procedure. 3. Record and proceedings of Sessions Trial No. 147 of 2008 has been received by this Court and we have perused the record. 4. We have heard the counsel for both the sides for suspension of sentence awarded to this appellant by the Trial Court-Sessions Judge, West Singhbhum, Chaibasa. This appellant has been punished for the offence punishable under Section 302 of the Indian Penal Code for causing murder of Budhni Bhumij. 5. Looking to the evidences on record there is, prima facie, case against this appellant-accused. As the Criminal Appeal is pending, we are not much analyzing the evidences on record, but, suffice it to say that the case of the prosecution is based upon the depositions of more than one eye witnesses who are P.W. 1 and PW. 4. Looking to the depositions of PW. 1 and P.W. 4, they have clearly narrated the role played by this appellant-accused for causing murder of the deceased. Their depositions are, also getting further corroboration by the deposition of PW. 3 as well as by the deposition of P.W. 6 who is Doctor M. Lugun who has carried out post mortem of the body of the deceased. Looking to these evidences, there is prima facie, case against this appellant. 6. Counsel appearing for the appellant submitted that there is discrepancy between ocular evidences and medical evidences and therefore, the sentence awarded to this appellant may be suspended. We do not agree with this submission. Looking to the evidences on record, it appears that P.W. 6 Doctor is not an eye witness. Whereas, P.W. 1 an P.W. 4 are the eye witnesses who have clearly narrated the role played by this appellant that he has entered into the house for committing rape upon P.W. 1 and it was resisted by P.W. 1 and during the process of resistance, the murder of deceased has taken place. There is also strangulation by this appellant. Every detail has been given by P.W. 1 and PW. There is also strangulation by this appellant. Every detail has been given by P.W. 1 and PW. 4 in their depositions so far as the murder of the deceased is concerned Looking to the evidence given by PW. 6 in his deposition, the injury sustained by the deceased cannot be said prima facie that there is any inconsistency between ocular evidence and medical evidence. 7. 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 Anr.* { (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 and 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 Ors. {(2002)3 S.C.C. 5981}; Puran etc. vs. Rambilas and Anr. Etc. { (2001)6 SCC 338 } and in Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav & Anr. [JT 2004(3) SC 442]." (Emphasis supplied) 8. {(2002)3 S.C.C. 5981}; Puran etc. vs. Rambilas and Anr. Etc. { (2001)6 SCC 338 } and in Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav & Anr. [JT 2004(3) SC 442]." (Emphasis supplied) 8. It has been held by the Hon'ble Supreme Court in the case of Ramji Prasad vs. Rattan Kumar Jaiswal and Anr, 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) 9. 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. 100-DB 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. 100-DB 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 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 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) 10. 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. 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. 11. In the light of the aforesaid decisions, at the stage of suspension of sentence, the discrepancy between medical evidence and ocular evidence is not to be appreciated in detail. Thus, we are not in agreement with the arguments canvassed by the counsel for the appellant. 12. Thus, looking to the evidences on record there is, prima facie, case and looking to the gravity of the offence, quantum of punishment and the manner, in which, this appellant is involved in the offence of murder of deceased, we are not inclined to suspend the sentence awarded by the Trial Court. 13. At this stage, counsel for the appellant unnecessarily and aggressively has argued that on the basis of the statement made by the appellant under Section 313 Cr.P.C., the sentence may be suspended. We are also not in agreement with this argument to suspend the sentence on the basis of the statement of the accused under Section 313 Cr.P.C., Hence, the prayer for suspension of sentence is hereby rejected.