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2018 DIGILAW 1047 (JHR)

Kalawati Devi v. State of Jharkhand

2018-05-10

AMITAV K.GUPTA, D.N.PATEL

body2018
ORDER : 1. This Interlocutory Application has been preferred under Section 389 of Code of Criminal Procedure for suspension of sentence awarded to this appellant by Sessions Judge, Lohardaga, in Sessions Trial No. 55 of 2003. By the order of conviction and sentence dated 18th August, 2012 and 28th August, 2013 respectively, this appellant has been mainly convicted for an offence punishable under Section 302 of the Indian Penal Code to be read with Section 34 thereof, for life imprisonment and fine of Rs. 10000/- and in case of default, further simple imprisonment for six months. 2. As the Criminal Appeal is pending, we are not much analyzing the evidences on record, but, suffice it to say that there is a prima-facie case against this appellant-accused. Earlier also, prayer for suspension of sentence of this appellant was rejected by detailed speaking order dated 17th January, 2013 as well as vide order dated 20th August, 2016 in I.A. No. 7546 of 2013. 3. The case of the prosecution is based upon the eyewitness. Murder of wife of co-accused has been committed with the help of this appellant. PW-3 is an eyewitness of the incident, who has clearly narrated the role played by this appellant-accused. Medical evidences given by PW-12 are corroborative to the evidence given by the eyewitness. Evidences given by other prosecution witnesses including the Investigating Officer (PW-13) are also corroborative to the evidence given by eyewitness PW-3. Prima-facie, they have proved the place of occurrence, the time of occurrence, the manner in which the occurrence has taken place and, there are as many as five injuries upon the body of the deceased as per the post mortem note. After rejection of the earlier prayer for suspension of sentence twice, this is a 3rd attempt, without any change of fact, except efflux of time. 4. While rejecting the prayer for suspension of sentence, it has been observed in paragraph 3 of the order dated 20th August, 2016 passed in I.A. No. 7546 of 2013 of this Criminal Appeal as under:- “3. Looking to the evidence on record of PW-3 and other witnesses, they have prima-facie established the date of occurrence, the place of occurrence, the manner in which the whole incident of murder has taken place in the house of the original accused no. 1 and the present of this appellant at the scene of occurrence. Looking to the evidence on record of PW-3 and other witnesses, they have prima-facie established the date of occurrence, the place of occurrence, the manner in which the whole incident of murder has taken place in the house of the original accused no. 1 and the present of this appellant at the scene of occurrence. PW-3 has also stated that this appellant had also beaten the deceased. Moreover, looking to the medical evidence given by PW-12, there were five injuries upon the body of deceased as per Exhibit-4 which is the post mortem report. PW-13 is the Investigating Officer who has also given a detail evidence which is corroborative to the depositions of other prosecution witnesses. Blood stained earth was also found from the house of Devendra Sahu who is husband of the deceased. At night hours when the murder has taken place, presence of this appellant Kalawati Devi was also there. Unless there is mens rea, her presence could not have been there in the house of somebody else. Dead body was also recovered from the house of Devendra Sahu with whom this appellant was having illicit relation, as per the prosecution case. This appellant was also absconding after the offence was registered on 30.03.2001. Looking to the evidence on record of prosecution witnesses specially of PW3 who is daughter of the deceased and other evidences on record including of PW-12, PW-13, there is a prima-facie case against this appellant-accused. Moreover, previously also the prayer for suspension of sentence was rejected by this Court by a detail speaking order dated 17th January, 2013 and there is no change in the circumstances whatsoever except efflux of time.” 5. It has been also observed by this Court in paragraphs 5 and 6 of the order dated 17th January, 2013 in this Criminal Appeal as under:- “5. Having heard the Counsel for both the sides and looking to the evidence on record there is prima-facie case against both the appellants. As the Criminal Appeals are pending for their final hearing, we are not much analyzing the evidence on record but suffice it to say that:- (i) the incident had taken place on 29th March, 2001 at about mid night hours. (ii) Murder had taken place in the house of Devendra Sahu (appellant in Cr. Appeal No. 1106 of 2012). As the Criminal Appeals are pending for their final hearing, we are not much analyzing the evidence on record but suffice it to say that:- (i) the incident had taken place on 29th March, 2001 at about mid night hours. (ii) Murder had taken place in the house of Devendra Sahu (appellant in Cr. Appeal No. 1106 of 2012). As per the Investigating Officer, evidence given by PW-13 the dead body was found from the house of Devendra Sahu. Cloths of the deceased-Urmila Devi were having blood stains. Blood stained earth was also found in the house of accused-Devendra Sahu. Looking to the evidence on record before the learned Trial Court, it appears that the case of the prosecution is based on several witnesses including the eye-witness PW-3, who is the daughter of the deceased. Her presence at the scene of offence during mid night hours in her house is natural. Looking to her deposition in Examination-in-Chief and cross-examination, it appears that she has given enough details about the commissioning of the offence at the behest of these appellants. 8. We are not dealing with the fine nicety of the evidence given by PW-3 to be read with other depositions of the prosecution witnesses but suffice it to say that she has clearly narrated the role played by these appellants in causing murder of the deceased. Her deposition is also getting further corroboration by the Medical evidence given by PW-12, who is Dr. Laxman Mandal, and there are several injuries upon the body of the deceased. Thus ocular evidence and medical evidence are supportive to the case of the prosecution. The case of the prosecution is also supported by PW-7, PW-8, PW-12 and PW-13. I.O. also in detail narrated the scene of offence and the seizure list etc. The motive has also been stated by the witness. The documents whereof are as Ext.2 and Ext.X which are appertaining to Maintenance Case filed by the deceased against Devendra Sahu (Appellant of Cr. Appeal No. 1106 of 2012) and also about previous dispute which was brought before Panchayati. This Panchayati papers have been also presented by PW-7. The motive has also been stated by the witness. The documents whereof are as Ext.2 and Ext.X which are appertaining to Maintenance Case filed by the deceased against Devendra Sahu (Appellant of Cr. Appeal No. 1106 of 2012) and also about previous dispute which was brought before Panchayati. This Panchayati papers have been also presented by PW-7. Much has been argued out at length, we are not restraining ourselves and dealing with each and every accused at this stage for suspension of sentence under Section 389 of the Code of Criminal Procedure as the final hearing of these appeals are yet to be done. Much has been argued about the age of PW-3, who is the daughter of the deceased and her capacity and ability to give the deposition. 9. We have carefully seen the depositions of PW-3 along with other depositions and also perused the judgment delivered by the learned Trial Court. She has clearly narrated that:- (a) the place of scene of offence. (b) weapon used by the accused. (c) injuries sustained by the deceased. (d) motive we think that this is sufficient for deciding the prima-facie case against these appellants in the light of the evidence on record there is prima-facie case against the accused-appellant of Cr. Appeal No. 965 of 2012 is a root cause of the murder and the Maintenance Case etc. Prosecution has alleged common intention under Section 34 of the Indian Penal Code for these appellants in the light of this evidence on record there is prima-facie case against both the accused-appellants and looking to the role played by these appellants-accused in causing murder of the deceased, who is wife of Devendra Sahu and looking to the gravity of the offence and quantum of punishment, we are not inclined to suspend the sentence of these appellants and therefore, there is no substance in the prayer for suspension of sentence and the same is hereby dismissed.” 6. In view of the aforesaid evidences on record and for the reasons stated herein above, there is a prima-facie case against this appellant-accused. Moreover, looking to the gravity of offence, quantum of punishment and the manner in which this appellant is involved in causing murder of the deceased, we are not inclined to suspend the sentence awarded to this appellant by the trial Court. 7. Moreover, looking to the gravity of offence, quantum of punishment and the manner in which this appellant is involved in causing murder of the deceased, we are not inclined to suspend the sentence awarded to this appellant by the trial Court. 7. It has been held by the Hon'ble Supreme Court in the case of Khilari vs. State of U.P. and Another, (2008) 11 SCC 180 especially in paragraph 10, which reads as under:- “10. In Anwari Begum vs. Sher Mohammad and Another, 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 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 vs. Sudarshan Singh and Others, (2002) 3 SCC 598 , Puran vs. Rambilas and Another, (2001) 6 SCC 338 and in Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav and Another, JT 2004 (3) SC 442.” (Emphasis supplied) 8. It has also been held by the Hon'ble Supreme Court in the case of Ramji Prasad vs. Rattan Kuamr Jaiswal and Another, (2002) 9 SCC 366 especially at paragraph 3 as under:- “3. It has also been held by the Hon'ble Supreme Court in the case of Ramji Prasad vs. Rattan Kuamr Jaiswal and Another, (2002) 9 SCC 366 especially at paragraph 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) 9. It has further been held by the Hon'ble Supreme Court in the case of State of Haryana vs. Hasmat, (2004) 6 SCC 175 especially at paragraphs 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 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. 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, which passing the impugned order.” (Emphasis supplied) 10. As a cumulative effect of the aforesaid evidences, reasons and the judicial pronouncements, we see no reason to entertain this Interlocutory Application and the same is, hereby, dismissed. I.A. dismissed.