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2018 DIGILAW 2760 (JHR)

Lukman Ansari @ Lukman Mian v. State of Jharkhand

2018-12-14

D.N.PATEL

body2018
ORDER : I.A. No. 3455 of 2016: 1. This interlocutory application has been preferred under Section 389 of the Code of Criminal Procedure for suspension of sentence awarded to these appellants by the 1st Additional Sessions Judge, Deoghar in Sessions Case No. 271 of 2008. These appellants are convicted for the offence punishable under Section 304-B IPC, for life imprisonment. 2. Having heard the counsels for both the sides and looking to the evidences on record, there is a prima-facie case against these appellant-accused. 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 of the prosecution witnesses, especially, PW-1, PW-2, PW-3, PW-5 and PW-6, they have clearly narrated the role played by these appellants in causing murder of the deceased-Tamanna Bibi. 3. Previously also, the prayer for suspension of sentence was rejected by a detailed speaking order vide orders dated 29.04.2013 and 20.09.2014. Paragraph nos. 5 to 9 of the order dated 29.04.2013 read as under: “(5) Counsel for the State-A.P.P. vehemently submitted that the date of occurrence is 17th July, 2007.The marriage of the original accused No. 4 and the deceased was solemnized in the month of August, 2006 and there was demand of dowry of other several articles, as stated by the prosecution witnesses. Thus, the death has taken place within seven years of the marriage and, therefore, presumption under Section 113-B of the Indian Evidence Act has also been invoked. Learned A.P.P. further submitted that the offence of murder has taken place on 17th July, 2007 and the loving husband (original accused No. 4) was not traceable. Tamanna Bibi was taken to hospital by Chaukidar and this loving husband was absconding and he surrendered on 20th September, 2007. Similarly, remaining co-accused surrendered on 10th August, 2007. It is also submitted by the learned counsel for the State-A.P.P. that looking to the evidences given by PW-1, PW-2, PW-3, PW-5 and PW-6, they have clearly narrated the role played by these appellants. They were demanding several articles from deceased-Tamanna Bibi and the father of the deceased was unable to supply all these articles including Color T.V. and Motorcycle, etc. as dowry. The deceased was harassed mentally and physically and looking to the medical evidence given by PW-9 Dr. Ram Chandra Prasad, the cause of death is asphyxia due to throttling. They were demanding several articles from deceased-Tamanna Bibi and the father of the deceased was unable to supply all these articles including Color T.V. and Motorcycle, etc. as dowry. The deceased was harassed mentally and physically and looking to the medical evidence given by PW-9 Dr. Ram Chandra Prasad, the cause of death is asphyxia due to throttling. It is submitted by the learned counsel for the State-A.P.P. that not only the appellants have committed murder of the deceased, but, they have also tried to burn the dead body and it has been pointed out by PW-9 that burn injuries are post mortem burns and there were no carbon particles in the lungs. Thus, there are enough degree of mens rea on the part of these appellants in causing murder of the deceased and for which they have adequately been punished by the learned trial Court and the deceased was only 20 years old and, therefore, it is submitted by the learned A.P.P. that the sentence awarded to these appellants may not be suspended by this Court and, he has also relied upon the following decisions:- (6) 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 110 especially in paragraphs 4, 6, 10, 12 and 13, which reads as under: “4. The only stand taken was that the ante-mortem injuries on the body of the deceased included three contusions, one abraded contusion and four lacerated wounds of different dimensions on various parts of the body which could not have been caused by iron rods. It was their stand that some unknown assailants caused the injuries to the deceased. 6. After noticing the rival stands the High Court by the impugned order granted the bail with the following conclusions: 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. 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, JT 2004 (3) SC 442.” 12. The extracted portion and the High Court's order goes to show there was complete non-application of mind and non-consideration of the relevant aspects. 13. The impugned order, therefore, is not sustainable and it dismissed. The bail granted to Respondent 2 is cancelled. The matter is remitted to the High Court for fresh consideration in accordance with law.” (Emphasis supplied) (7) It has been held by the Hon’ble Supreme Court in the case of Ramji Prasad vs. Rattan Kumar Jaiswal and Another, (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. 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, (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. 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. 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. 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) (9) Looking to the records and proceeding of Sessions Case No. 271 of 2008 and having heard the learned counsel for the State-A.P.P. there is prima-facie case against these appellants. As the criminal appeal is pending, we are not much analyzing the evidences on record, but, suffice it will be to say that the present case is a case of death of the deceased because of demand of dowry. The death has taken place within seven years of the marriage. Looking to the evidences given by PW-1, PW-2, PW-3, PW-5 and PW-6, there is prima- facie case against these appellants and they have clearly narrated the role played by these appellants. Moreover, looking to the evidence given by PW-9, who is Dr. Ram Chandra Prasad, the cause of death is asphyxia due to throttling. Thus, by throttling the murder has been committed by these appellants in the house of these appellants and after the death of the deceased, these appellants have tried to burn the dead body. Burn is upto 98% as per medical evidence. Ram Chandra Prasad, the cause of death is asphyxia due to throttling. Thus, by throttling the murder has been committed by these appellants in the house of these appellants and after the death of the deceased, these appellants have tried to burn the dead body. Burn is upto 98% as per medical evidence. Burn injuries are post mortem burns and there were no carbon particles in the lungs. This reflects enough degree of mens rea on the part of these appellants. It further appears that after committing murder, the appellants tried to burn the dead body of the deceased and original accused No. 4, Jamir Mian, who is husband of the deceased, he was not available for interrogation or investigation to the police. Looking to these evidences on record, there is a prima-facie case against these appellants and looking to the gravity of the offence, quantum of punishment and also looking to the manner in which these appellants are involved in the offence of murder of the deceased, we are not inclined to suspend the sentence awarded to these appellants-accused, during pendency of this criminal appeal. Thus, there is no substance in the prayer of suspension of sentence and the same is hereby dismissed.” 4. There is no changed circumstance whatsoever after the rejection of the prayer for suspension of sentence. 5. Thus, looking to the evidences on record, there is prima-facie case against these appellants-accused and looking to the gravity of offence, quantum of punishment and also looking to the fact that previously twice the prayer for suspension of sentence was rejected, we are not inclined to suspend the sentence awarded to these appellants by 1st Additional Sessions Judge, Deoghar in Sessions Case No. 271 of 2008. 6. Hence, there is no substance in this interlocutory application and the same is, hereby, dismissed. 7. Nonetheless, looking to the period of custody, we, hereby, direct the Registrar General of this Court to get the Paper-Book prepared with neatly typed copies of depositions of the prosecution witnesses and other evidences on record as per Rule 190 and 191 of the High Court of Jharkhand Rules, 2001, within a period of six weeks from today and thereafter this Criminal Appeal shall be listed under the heading “For Hearing” before the appropriate Court as per the Roster. Application dismissed.