Research › Search › Judgment

Jharkhand High Court · body

2014 DIGILAW 736 (JHR)

Ramji Yadav v. State of Jharkhand

2014-07-15

D.N.PATEL, P.P.BHATT

body2014
Order D.N. Patel, J.: 1. The present interlocutory application has been preferred under Section 389 of the Code of Criminal Procedure for suspension of sentence, awarded to the present appellant (original accused no. 4 in Sessions Trial No. 81 of 2007), passed by the Additional District & Sessions Judge, F.T.C.V, Godda. This appellant has been convicted for the offence punishable under Section 364A of the Indian Penal Code and sentenced to undergo life imprisonment and also to pay fine of Rs.10,000/and in case of default, he will further undergo rigorous imprisonment for two years. This appellant has also been convicted for the offence punishable under Section 120B of the Indian Penal Code and sentenced to undergo life imprisonment. 2. We have perused the record and proceeding of Sessions Trial No. 81 of 2007. Looking to the evidences on record, there is prima facie case against this appellant. As the criminal appeal is pending, we are not much analyzing the evidences on record, but, suffice it to say that looking to the depositions given by P.W.1, P.W.2 and P.W.3, there is prima facie case against this appellant. Ransom was also paid to one of the co-accused namely, Ajay Yadav. As this criminal appeal is pending, we are not going much into the evidence of the prosecution, but, suffice it to say that this Ajay Yadav, who was paid money, has also consulted Ramji Yadav at the railway platform of Sahibganj. Every act of coconspirator is a furtherance of the conspiracy. 3. Moreover, earlier on 3rd November, 2010, the prayer for suspension of sentence of this appellant was rejected by a Division Bench of this Court. Thereafter, on 27th February, 2013 an I.A. was preferred in this criminal appeal being I.A. No. 168 of 2013, which has been rejected as not pressed. Thus, this is third attempt for getting order under Section 389 of the Code of Criminal procedure and there is no change in circumstance whatsoever after the said rejection except efflux of time. Thus, we are not inclined to suspend the sentence awarded to this appellant by the trial court. 4. Counsel for the appellant has relied upon the two decisions reported in 2006 CRI. L.J. 2494 and 2013(3) East Cr C 254 we have perused the judgments. Thus, we are not inclined to suspend the sentence awarded to this appellant by the trial court. 4. Counsel for the appellant has relied upon the two decisions reported in 2006 CRI. L.J. 2494 and 2013(3) East Cr C 254 we have perused the judgments. This is a stage of suspension of sentence under Section 389 of the Code of Criminal Procedure and not the final hearing of the criminal appeal and therefore, we are not pointing that how the facts proved by the prosecution witnesses are materially different than the narrated facts in those cases, but, suffice it to say that in the judgment 2006 CRI. L.J. 2494, it has been pointed out by the counsel for the appellant that an accused, who is receiving money, had no authority by another co-accused. This type of argument is not accepted because there cannot be a written contract between the two co-accused. The authority is to be inferred and there is no need of any documentary evidence. Here, there is an allegation of conspiracy under Section 120B of the Indian Penal Code and in the evidence of the prosecution witnesses Rs.10,000/- has been demanded as ransom and further ransom was also demanded which is at Rs.2,00,000/-. 5. 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. 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. 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 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) 6. 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) 7. 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. 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. 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 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) 8. As a cumulative effect of the aforesaid facts and reasons, there is prima facie case against this appellant. Looking to the gravity of the offence, quantum of punishment and the manner in which this appellant is involved in the offence as alleged by the prosecution, we are not inclined to suspend the sentence awarded by the trial court to this appellant. Hence, his prayer for suspension of sentence, is rejected. Ordered accordingly.