N. Suyambulingam v. State represented by, Inspector of Police, Eral Police Station, Thoothukudi District
2014-08-19
S.MANIKUMAR, V.S.RAVI
body2014
DigiLaw.ai
Order V.S. Ravi, J. The petitioner, in both the petitions are appellants 2 and 1 respectively, have filed the petitions, under Section 389(1) Cr.P.C. seeking suspension of sentence imposed on them by the Court below in the sessions case in S.C.No.5 of 2011 by its judgment dated 15.04.2013. 2. The case of the prosecution is that on 04.07.2010 at 03.00 p.m. the accused 1 and 2, due to previous enmity, to commit the murder of Gnanasundar, each accused have possessed with Aruval and attacked the deceased and thereby the accused have committed the murder of Gnanasundar. The petitioners themselves admitted in the petitions that they have been convicted by the lower Court viz., A1 has been convicted for the offences under Sections 294(b), 302 r/w 34 IPC and A2 has been convicted for the offences under Sections 294(b) and 302 r/w 34 IPC and 307 IPC altered into under Section 324 IPC. A1 and A2 have also been sentenced to pay fine. The petitioners have paid the fine amount before the lower Court on 16.04.2014. 3. Aggrieved by the conviction and sentence, the petitioners/Appellants 2 and 1 have preferred appeal in Crl.A(MD).No.143 of 2013 and filed the present petitions seeking suspension of sentence. Further, the petitioners have admitted in their petition that this is the third application for suspension of sentence and the earlier applications in M.P.(MD).Nos.6 and 5 of 2013 seeking suspension of sentence, have been dismissed on 31.01.2014. 4. Brief averments made in the petitions and also the submissions made on behalf of the petitioners by the learned Senior counsel for the petitioners are as follows: 4.1 The judgment of the Court below has to be set aside as the sniffer dog has been summoned and it shows that accused are unknown persons and in the present case the inquest has been conducted on 04.07.2010, but at the time of inquest the crime number has not been mentioned in the inquest, which shows that the inquest has been conducted earlier than the registration of FIR in the present case. 4.2. Further, PW1 in the FIR has given the petitioners overt act against the petitioners and unknown persons, but during the course of evidence, overt act has been mentioned in different way. Thus, the evidence of PW1 cannot be believed and he is not an eyewitness and his evidence is to be hardly believed.
4.2. Further, PW1 in the FIR has given the petitioners overt act against the petitioners and unknown persons, but during the course of evidence, overt act has been mentioned in different way. Thus, the evidence of PW1 cannot be believed and he is not an eyewitness and his evidence is to be hardly believed. The evidence of PW1 and PW2 are contradictory to each other. PW1 has sustained only simple injury and there is a possibility of self infliction. The prosecution has not proved the case beyond reasonable doubt and the lower Court erred in convicting the petitioners without any substantial evidence. Hence, the petitioners prayed for suspension of sentence imposed on them, pending appeal. 5. Per contra, the learned Additional Public Prosecutor has contended that the petitioners have been convicted for grave offence under Section 302 I.P.C. He further submitted that the prosecution witnesses have given clear and cogent evidence regarding occurrence and overt act of the accused and the evidence have been corroborated with exhibits and material objects of the prosecution. The prosecution has proved the guilt of the accused beyond reasonable doubt and on appreciation of the testimonials of the prosecution witnesses, the learned Sessions Judge has found that the petitioner is guilty and sentenced to undergo life imprisonment for the grave offence of Section 302 IPC. Therefore, he prays for dismissal of this petition. 6. Heard the learned Senior Counsel appearing for the petitioners and the learned Additional Public Prosecutor appearing for the State and this Court also perused the materials available on record. 7. The direct point raised for consideration in the present case is:- Whether the petitioners are entitled to get bail pending appeal for the reasons stated in the present petitions? 8. On a perusal of the lower Court judgment, it is found that the petitioners have been convicted for commission of serious offences. Further, PW1 has stated that the accused attacked the deceased indiscriminately, that too, even after chasing him and when he prevented the attack, PW1 has also sustained injury. The case is purely based upon the direct version of eyewitnesses and it is not the case of circumstantial evidence. 9. Further, on a careful perusal of entire materials on record, it is found that there is no material change of circumstances to entertain the present third petitions filed by the petitioners at this stage.
The case is purely based upon the direct version of eyewitnesses and it is not the case of circumstantial evidence. 9. Further, on a careful perusal of entire materials on record, it is found that there is no material change of circumstances to entertain the present third petitions filed by the petitioners at this stage. Though there is a saying "bail is rule, rejection is an exception," but, after the Trial converse has to be the rule. Without there being any major change of circumstances, the present third petitions filed to grant suspension of sentence cannot be allowed, particularly in the serious case of murder. Once bail is rejected in pending appeal, without material change, the present third petitions for the suspend of sentence cannot be entertained. 10. In the petition, the petitioner has pointed out that PW-1 and PW-2 are interested witnesses and there is delay in the FIR reaching the Court and there are several contradictions in the evidences of the prosecution and the Trial Court without considering the above material details, has convicted the accused. Further, the learned counsel for the petitioner has relied upon the evidences of PW1 to PW3, PW8 and PW12 by filing the said statements in the typed set of papers along with the copy of F.I.R. in order to establish the contradictions in evidence of the prosecution. However, on a careful scrutiny of the entire materials, on record, it is seen that the difficult question of fact can be appreciated, in accordance with law, only at the time of hearing the main appeal. Though the power to suspend an order of conviction, is not alien to the provisions of Section 389(i) Cr.P.C., its exercise should be limited to very exceptional cases and that discretion has to be exercised judiciously, depending upon the facts and circumstances of each case. Facts and circumstances of each case will govern the exercise of the said judicial discretion. The correctness or otherwise of the submissions of the petitioners/accused, is only subject to proof, during the hearing of main criminal appeal. 11. Further, there are arugable points in the appeal itself, may not be sufficient to grant suspension of sentence, particularly, in the present case, wherein the petitioner has been convicted for serious crime of murder.
The correctness or otherwise of the submissions of the petitioners/accused, is only subject to proof, during the hearing of main criminal appeal. 11. Further, there are arugable points in the appeal itself, may not be sufficient to grant suspension of sentence, particularly, in the present case, wherein the petitioner has been convicted for serious crime of murder. 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 accusation made against the accused, and the manner in which the crime is alleged to have been committed. In the context of the facts and circumstances of the present case, this Court is not satisfied to grant suspension of sentence as prayed for in the petitions. Only after hearing the main appeal on merits, the correct and proper findings in the present case can be given. 12. It is well settled law that at the time of considering the suspension of sentence a detailed examination of evidence on merits of the case has to be avoided. It is also necessary for the Court granting bail to consider among other circumstances, the following factors also before granting bail, they are (a) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence and (b) Prima facie satisfaction of the Court in support of the charge. 13. Further, it is pertinent to point that the offence complained is of a serious in nature. In such circumstances, this Court is of the opinion that the petitioner have not made out any case for releasing them on bail at this stage. Further, the Court has to take into account the nature and gravity of the offence. In this case also, admittedly, the petitioners have been convicted in a case of murder. Further, this Court in M.P.(MD) No.1 and 2 of 2013 in Crl.A.(MD) No.143 of 2013, has granted suspension of sentence for accused 3 and 4 on the ground that A1 and A2 (petitioners herein) have attacked the deceased on the neck and the evidence of P.W.1 and P.W.2 are against the accused 1 and 2 and the name of the Accused Nos.3 and 4 have not been mentioned in the FIR. 14.
14. Considering the serious objections made by the learned Additional Public Prosecutor and the materials on record and more particularly, the gravity of the offence alleged to have been committed by the petitioners, it is reasonable, in the interest of justice, to dismiss the present petitions. 15. The considerations which normally weigh with the Court in granting bail in non-bailable offences are the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case. In this case also, the Court must not only keep in view of the right of petitioners herein, but also, the right of the victim of the crime and the society, at large. 16. For the reasons discussed above, this Court is of the opinion that the petitioners, herein have not made out a case for granting suspension of sentence to the petitioners. Accordingly, both the miscellaneous petitions are dismissed.