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2013 DIGILAW 463 (JHR)

Govind Rai v. State of Jharkhand

2013-04-09

D.N.PATEL, SHREE CHANDRASHEKHAR

body2013
JUDGMENT Per D.N. Patel, J. 1. This appeal has already been admitted by order dated 28th February, 2013 and the records and proceedings of Sessions Trial No. 291 of 2009 was called for from the trial court, so as to appreciate the argument for suspension of sentence. 2. This Court has received the records and proceedings of Sessions Trial No. 291 of 2009. We have perused the same and heard the counsel for both the sides at length for suspension of sentence under Section 389 of the Cr.P.C. 3. Having heard the counsel for both the sides and looking to the evidences of record, there is a prima facie case against these appellants. As the criminal appeal is pending, we are not analising the evidences on record, but, suffice it to say that looking to the evidences given by P.Ws 4 and 5, there is a prima facie case against these appellants accused. The incident has taken place during the night hours between 8th and 9th August, 2009. The wife of the Appellant No.2 was burnt during the night hours in the house of Appellant No.2, whereas Appellant No.1 was also residing. Looking to the evidences of P.Ws 4 and 5, there is a prima facie case against these appellants. Marriage was solemnized in the year 2007. Even, looking to the evidences of hostile eyewitnesses, who are P.Ws 6 and 7, they have also pointed out several facts against these appellants. Moreover, looking to the evidence given by P.W. 8, who is the investigating officer as well as the evidence given by P.W. 1, who is Dr. C.P. Sinha, it is pointed out that there was hundred percent burn injuries upon the body of the deceased. 4. It has been held by the Hon'ble Supreme Court in the case of Khilari v. State of U.P. and another reported in AIR 2008 S.C. 1882 especially in paragraph 10, which reads as under: “10. In Anwari Begum v. 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. In Anwari Begum v. 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 mater 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 dehors of such reasons suffers from non-application of mind as was noted by this Court, in Ram Govind Upadhyay v. Sudarshan Singh and Ors. [ (2002) 3 S.C.C. 598 ]; Puran etc. v. Rambilas and Anr. etc. [ (2001)6 SCC 338 )] and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav & Anr. [JT 2004 (3) SC 442].” (Emphasis supplied) 5. It has been held by the Hon’ble Supreme Court in the case of Ramji Prasad v. 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) 6. 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 v. Hasmat, as reported in (2004) 6 SCC 175 , 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 24102001 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. 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 v. Narendra and Ramji Prasad v. 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) 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 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. 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. 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 evidences on record and looking to the gravity of the offence, quantum of punishment and the manner in which these appellants accused is involved in the offence, as alleged by the prosecution, we are not inclined to suspend the sentence awarded to them by District and Additional Sessions Judge-I, Dumka in Sessions Trial No. 291 of 2009. There is no substance in the prayer for suspension of sentence and hence, the same is, hereby, rejected.