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2013 DIGILAW 486 (JHR)

Godai Mandal v. State of Jharkhand

2013-04-11

D.N.PATEL, R.R.PRASAD

body2013
JUDGMENT I.A. (Cr.) No. 1084 of 2012 Per D.N. Patel, J. The Present interlocutory application being I.A. (Cr.) No. 1084 of 2012 has been preferred by the original accused No. 4 in Sessions Case No. 51 of 2006/46 of 2006, who is appellant No. 2 in this Criminal Appeal for suspension of sentence awarded by the trial Court for causing murder of the deceased. 2. We have heard learned counsel appearing for both the sides and perused the record and proceedings of Sessions Case No. 51 of 2006/46 of 2006. 3. Looking to the evidences on record, there is prima facie case against this appellant, especially looking to the evidences of PW 1, PW 2, PW 5 and PW 6, PW 6 is an eye witness of the incident. 4. Looking to these evidences on record, there is, prima facie, case against this appellant. The depositions of these witnesses are getting enough corroboration by the medical evidence given by the PW 5. 5. Previously also, the prayer for suspension of sentence was rejected by this Court by passing a detailed speaking order, dated 11.09.209. Paragraph Nos. 6, 7 and 8 of the order dated 11.09.2009 read as under :- "6. Having heard learned counsel for both the sides and looking to the evidences of the prosecution witnesses, it appears that there is a prima facie case against the present appellants-accused persons. As the Criminal Appeal is pending, we are not much analyzing the evidence on record. Suffice it to say that the whole case of the prosecution is based upon the deposition of several prosecution witnesses including eye witness i.e. PW 6, who is mother of the deceased. Looking to her deposition, prima facie, it appears that there is a case against both the appellants-accused persons. Secondly, her version is corroborated by the depositions of other prosecution witnesses, especially by PW 1 and PW 2, who have rushed immediately, upon healing the alarm raised by the eye witness (PW 6). Thus, PW 1 and PW 2 came immediately after the attack upon the deceased. Looking to their depositions also, it appears that there is corroboration to the deposition of the eye witness. Moreover looking to the deposition of PW 5 who is Dr. Chandeshwar Prasad Sinha, it appears that there is enough corroboration to the deposition of the eye witness (PW 6). Looking to their depositions also, it appears that there is corroboration to the deposition of the eye witness. Moreover looking to the deposition of PW 5 who is Dr. Chandeshwar Prasad Sinha, it appears that there is enough corroboration to the deposition of the eye witness (PW 6). Thus, looking to the evidences of the prosecution witnesses, it appears that there is a prima-facie case against both the appellants-accused persons. 7. Learned counsel for the appellants-accused persons has vehemently submitted that there is contradiction between the ocular evidence and the medical evidence. 8. We have perused the evidences of PW 6, PW 1, PW 2 and PW 5, who is Dr. Chandeshwar Prasad Sinha. Looking to their depositions and looking to the gravity of offence, quantum of punishment and the manner in which the occurrence has taken place, as alleged by the prosecution, and also looking to the present stage under Section 389 of the Code of Criminal Procedure, at this stage, we are not inclined to grant the benefit of suspension of sentence, by deciding fine nicety as to whether the injury was caused on the neck or upon head of the deceased. Looking to the medical evidence, though it appears that there are injuries on the head of the deceased, but one of the prosecution witnesses has used the word "neck" also. We, therefore, do not want to suspend the sentence, only on the narration of a word "neck" and "head", looking to the head injuries sustained by the deceased, as per the medical evidence." 6. It has been availed by Hon'ble the Supreme Court in the case of Ramji Prasad v. Rattan Kumar Jaiswal and Anr., (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 ease 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." It has further been held by the Hon’ble Supreme Court in the case of State of Haryana v. Hasmat. (2004) 6 SCC 175 , in paragraph Nos. 6 to 9 as under : "6. (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 in, gradients 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 hand. The requirement of recording reason 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 in 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 to grant 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 4.10.2001 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 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. 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's 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 mature 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." It has been held by the Hon’ble Supreme Court in the case of Khilari v. State of U.P. & Anr., as reported in AIR 2008 SC 1882 , in paragraph No. 10, as under: "10. In Anwari Begum, v. Sher Mohammad and Anr., (2005) 7 SCC 326 , it was, inter alia, observed as follows: 7. Even on a cursory perusal of 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. 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., (2001) 6 SCC 338 and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav & Anr., JT 2004 (3) SC 442." [Emphasis supplied] 7. On the basis of the aforesaid evidences and the judicial pronouncement previously also prayer for suspension of sentence was rejected. 8. Looking to the evidences and looking to the gravity of the offence and the quantum of punishment and the manner in which the appellant is involved in the offence as alleged by the prosecution we are not inclined to suspend the sentence awarded to the appellant-accused by the trial Court. 9. There is no substance in the present interlocutory application and hence, I.A. (Cr.) No. 1084 of 2012 is hereby dismissed. I.A. dismissed.