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2017 DIGILAW 292 (JHR)

Pancham Singh v. State of Jharkhand

2017-02-10

D.N.PATEL, RATNAKER BHENGRA

body2017
ORDER : D.N. Patel, J. 1. This interlocutory application has been preferred under Section 389 of the Code of Criminal Procedure for suspension of sentence, awarded to the applicant (original appellant No. 1 Panch am Singh). This appellant has been convicted in S.T Case No. 23 of 2006 by the Additional Sessions Judge-I, Lohardaga vide judgment of conviction and order of sentence dated 23.7.2012 and 25.7.2012 respectively and this appellant has been mainly punished for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 34 thereof. Moreover. this appellant has also been convicted under other sections of the Indian Penal Code and all the sentences have• been ordered to run concurrently. 2. Having heard counsel for both the sides and looking to the evidence on record, it appears' that there is a prima facie case against tile appellant accused. The case of the prosecution is based upon several eyewitnesses, who are P.W. 1, P.W. 2. P.W. 4, P.w. 7 and P.W. 8 and injured eyewitness P.W. 10. Injury of the injured eyewitness P.W. 10 has also been proved by P.W 6, who is Dr. Shailesh Kumar. Looking to the evidence of these eyewitnesses including the injured eyewitness it appears that they have clearly narrated role played by this appellant-accused in causing murder of the deceased. Their evidence is constituting a prima facie case against this appellant-accused. Medical evidence given by Doctor Ajit Kumar Chowdhury, P. W. 13, who has carried out the post mortem on the body of the deceased is corroborative to the deposition of the eyewitnesses. 3. Much has been argued out by the counsel for the appellant for so-called self-defence, sudden fight and hence, exception to murder and also as to nature of the weapon, loss of livelihood and this appellant is a victim. None of these contentions are accepted by this Court for appreciation of an argument for suspension of sentence. as self-defence etc. can be appreciated by detail dissection of evidences, on record, at the time of final hearing of the Criminal Appeal. At this stage, we are concerned with prima facie case. gravity of the offence and quantum of punishment. 4. In the case of State of M.P. VS. Mansingh, reported in (2003) 10 SCC 414 , the Hon'ble Supreme Court in Para-9 held as follows:- "9. At this stage, we are concerned with prima facie case. gravity of the offence and quantum of punishment. 4. In the case of State of M.P. VS. Mansingh, reported in (2003) 10 SCC 414 , the Hon'ble Supreme Court in Para-9 held as follows:- "9. The evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly Merely because there was no mention of a knife in the first information report, that does not wash away the effect of the evidence tendered by the injured witnesses PWs-4 and 7. Minor discrepancies do not corrode the credibility of an otherwise acceptable evidence. The circumstances highlighted by the High Court to attach vulnerability to the evidence of the injured witnesses are clearly inconsequential. It is fairly conceded by the learned counsel for the accused that though mere non-mention of the assailants' names in the requisition memo of injury is not sufficient to discard the prosecution version in entirety, according to him it is a doubtful circumstance and forms a vital link to determine whether the prosecution version is credible. It is a settled position in law that omission to mention the name of the assailants in the requisition memo perforce does not render the prosecution version brittle." In the case of State of U.P. VS. Kishan Chand, reported in (2004)7 SCC 629 , the Hon'ble Supreme Court in Para-10 held as follows:- "10. That apart, PW-1-Shridhar and PW-8-Mizazi Lal are both independent and injured witnesses. The testimony of an injured witness has its own relevance and efficacy, The fact that the witnesses sustained injuries at the time and place of occurrence lends support to their testimony that the witnesses were present during the occurrence. The injured witnesses were subjected to lengthy cross-examination but nothing could be elicited to discredit their testimony," In the case of Abdul Sayeed VS. State 01 Madhya Pradesh, reported in (2010)10 SCC 259 , the Hon'ble Supreme Court held at Para-30 held as follows:- "30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. State 01 Madhya Pradesh, reported in (2010)10 SCC 259 , the Hon'ble Supreme Court held at Para-30 held as follows:- "30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein." 5. Moreover, previously also, prayer, for suspension has been rejected vide order detailed order dated 10.10.2012. In paragraph no. 4 of the said order, dated 10.10.2012, reads as under:- "Having heard counsel for both the, sides and looking to the evidences on record, it appears that there is a prima facie case against appellant no. 1, who is original accused no, 1, namely Pancham Singh. 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 several eyewitnesses, who are PW-1, PW-3, PW-4, PW-7, PW-8, PW-9 and also based upon the' depositions given by the injured eyewitness PW -10, The depositions of these eyewitness have enough corroboration by the medical evidences given by PW-6-Dr. Shailesh Kumar, who has given earlier treatment to the deceased namely Ashim Ansari, and the deposition given by PW-13 namely Dr, Ajit Kumar Chaudhary, who has carried out the post mortem. From the evidences on record, it appears that the deceased has received major injuries on the left parietal region, which is capable of being caused by hard and blunt substance causing death of the deceased, as per PW-13. It appears from the evidences on record that original accused no. 1 or appellant no. 1, was having hard and blunt substance in his hand to cause injury". (Emphasis Supplied) 6. It has been held by the Hon'ble Supreme Court in the case of "Khilari Vs. It appears from the evidences on record that original accused no. 1 or appellant no. 1, was having hard and blunt substance in his hand to cause injury". (Emphasis Supplied) 6. 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 SCC 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 ti1mpering 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 the Court. in Ram Gavind Upadhyay vs. Sudarshan Singh and Ors. [ (2002)3 SCC 598 ]; Puran etc. VS. Rambilas and Anr. etc. [ (2001)6 SCC 338 )] and in Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav and Anr. [JT 2004 (3) SC 442]." (Emphasis supplied) 7. 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. [ (2001)6 SCC 338 )] and in Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav and Anr. [JT 2004 (3) SC 442]." (Emphasis supplied) 7. 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) 8, 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 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, while passing the impugned order." (Emphasis supplied) 9. There is no change in the circumstance after earlier order dated 10.10.2012 the rejection of the prayer for suspension of the sentence. 10. Counsel appearing for tire appellant has submitted that another similarly situated accused has been enlarged on bail vide order dated 10.10.2012 by the same order. 11. Looking to the evidence on record it appears that this bifurcation has already been done vide order 10.10.2012. Thus there is no substance in this Interlocutory Application and the same is, therefore, dismissed. 12. Counsel appearing for the appellant has also canvassed the argument about no recovery of the weapon. Recovery of weapon depends on cleverness of the appellant and dullness of the Investigating Officer. For conviction. Thus there is no substance in this Interlocutory Application and the same is, therefore, dismissed. 12. Counsel appearing for the appellant has also canvassed the argument about no recovery of the weapon. Recovery of weapon depends on cleverness of the appellant and dullness of the Investigating Officer. For conviction. there is no need of recovery of weapon. when the case 'of the prosecution is based upon the eye-witnesses who are more than half a dozen and when the case of the prosecution is also based on injured eyewitness. which is further corroborative by the medical evidence. 13. In view of this evidence on record also, there is no substance in the interlocutory application and the same is, therefore, dismissed.