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2022 DIGILAW 59 (MAN)

Konjengbam Nillakomol Singh v. State of Manipur

2022-04-27

M.V.MURALIDARAN

body2022
JUDGMENT 1. This petition has been filed by the petitioner under Section 389 Cr.P.C. praying to suspend the operation of the judgment dated 13.05.2019 and the order of sentence dated 27.05.2019 passed by the learned Sessions Judge, Thoubal in Sessions Trial Case No.29 of 2014 and to release the petitioner on bail during the pendency of the appeal. 2. The petitioner, who has been arrayed as the second accused in Sessions Trial Case No.29 of 2014 on the file of the learned Sessions Judge, Thoubal, was convicted under Section 304 Part II read with Section 34 of IPC and sentenced to undergo 8 years RI and to pay fine of Rs.20,000/-, in default, he was directed to serve Simple Imprisonment for a period of 6 months. Challenging the conviction and sentence imposed on the petitioner, he has filed criminal appeal before this Court. Along with the appeal, the petitioner has filed petition seeking to suspend the sentence stating that he has a very good case on merits and is likely to succeed in the appeal filed by him. 3. Mr. L. Seityandra, the learned counsel for the petitioner submitted that there are lot of infirmities in the impugned judgment and that the petitioner has got good case on merits to succeed in the appeal. He would submit that the petitioner was released on bail during the trial from 4.1.2005 till the date of judgment i.e. 13.05.2019 and while he was on bail, the petitioner did not attempt to abscond or tamper with any prosecution witnesses to hamper the trial. He would also submit that the release of the petitioner on bail shall not cause any inconvenience or prejudice to the prosecution. 4. The learned counsel next submitted that the appeal would not be taken up for hearing in the near future and therefore, the petitioner is entitled to suspension of sentence pending appeal and that the petitioner undertakes to abide by the conditions imposed by this Court. 5. Mr. Seityandra, the learned counsel for the petitioner urged that detention of the petitioner during pendency of the appeal is a severe punishment to all his family members and prays for suspension of sentence pending appeal. 6. Per contra, Mr. Y. Ashang, the learned Additional Public Prosecutor submitted that the petitioner is not entitled to suspension of sentence in view of the findings recorded by the trial Court. 6. Per contra, Mr. Y. Ashang, the learned Additional Public Prosecutor submitted that the petitioner is not entitled to suspension of sentence in view of the findings recorded by the trial Court. He would submit that there is every possibility of the petitioner absconding in case he is released on bail by suspending the sentence. Therefore, the petitioner is not entitled to the benefit of Section 389 Cr.P.C. and, thus, prayed for dismissal of the petition. 7. Further, Mr. Y. Ashang, the learned Additional Public Prosecutor submitted that the petitioner is not entitled to release on bail during the pendency of the appeal at this early stage in order to maintain the balance of rules of law vis-a-vis public confidence on judiciary. 8. This Court considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record. 9. The petitioner along with the first accused was convicted under Section 304 Part II read with Section 34 IPC for killing of one Naorem Sanahal Singh. Upon hearing the accused persons, the trial Court sentenced to suffer rigorous imprisonment for a period of 8 years and to pay a sum of Rs.20,000/- each as fine under Section 304 Part II read with Section 34 IPC and in default of payment of fine, the convicts shall undergone simple imprisonment for a period of 6 months. The trial Court also recommended Rs.5 lakh as victim compensation in terms of 'Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes, 2018'. The judgment of the trial Court is dated 13.05.2019 and sentence was imposed on 27.5.2019 and from 27.5.2019 onwards, the petitioner was in jail. 10. The petitioner challenged the judgment of the learned Special Judge on various grounds as could be seen from the grounds of appeal. The petitioner has raised a ground that the learned Special Judge failed to appreciate the oral testimony of the prosecution witnesses in proper perspective and in view of lot of infirmities and lacuna in the evidence of the prosecution witnesses, the conviction cannot stand. 11. It is settled that when a convicted person is sentenced to a fixed period of sentence and the appellate Court finds that due to practical reasons the appeal cannot be disposed of expeditiously, it can pass appropriate orders for suspension of sentence. 12. 11. It is settled that when a convicted person is sentenced to a fixed period of sentence and the appellate Court finds that due to practical reasons the appeal cannot be disposed of expeditiously, it can pass appropriate orders for suspension of sentence. 12. In Bhagwan Rama Shinde Gosai and others v. State of Gujarat, (1999) 4 SCC 421 , the Hon'ble Supreme Court held: '3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course, if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence, so as to make the appeal right, meaningful and effective. Of course, appellate courts can impose similar conditions when bail is granted.' 13. In Union of India v. Ram Samujh and another, (1999) 9 SCC 429 , the Hon'ble Supreme Court held that the jurisdiction of the Court to grant bail is circumscribed by the aforesaid Section of the Act. The bail can be granted and sentence suspended in a case where there are reasonable grounds for believing that the accused is not guilty of the offence for which he is convicted and he is not likely to commit any offence while on bail and during the period of suspension of sentence. 14. In the instant case, the appellant challenged the judgment of the trial Court on various grounds as could be seen from the grounds of appeal and the petitioner has got arguable case. 14. In the instant case, the appellant challenged the judgment of the trial Court on various grounds as could be seen from the grounds of appeal and the petitioner has got arguable case. At this stage, this Court is not concerned with the merits of the appeal and the concern is only with regard to the point whether the petitioner is entitled to suspension of sentence pending appeal. 15. As stated supra, the Hon'ble Supreme Court in the case of Bhagwan Rama Shinde Gosai (supra), held that the prayer for suspension of sentence pending appeal should be considered liberally unless there is any statutory restriction. 16. Where an appeal is preferred against conviction under Section 304 Part II IPC before the High Court, the High Court has ample power and discretion to suspend the sentence. However, that discretion has to be exercised judiciously depending upon the facts and circumstances of each case. While considering the suspension of sentence, each case has to be considered on the basis of the nature of the offence, the manner in which the occurrence had taken place, whether bail granted earlier had been misused. There is no straitjacket formula which could be applied in exercising discretion and the facts and circumstances of each case would govern the exercise of judicious discretion while considering an application filed by a convict under Section 389 Cr.P.C. 17. In the instant case, the appeal is of the year 2021 and due to practical reasons, the appeal cannot be taken up in the near future and disposed of expeditiously. Therefore, this Court finds that this is a fit case to suspend the sentence imposed on the petitioner pending appeal, however, subject to stringent conditions. 18. In the light of the decision of the Hon'ble Supreme Court in the case of Bhagwan Rama Shinde Gosai (supra), and the fact remains that the present appeal would take substantial time to come up for final hearing, without expressing any opinion on the merits of the appeal, this Court is inclined to suspend the sentence imposed on the appellant. 19. 19. Accordingly, the sentence imposed on the petitioner in Sessions Trial No.29 of 2014 dated 27.05.2019 on the file of the learned Sessions Judge, Thoubal alone is suspended, subject to the compliance of the following conditions by the petitioner: (a) The petitioner is directed to be released on bail on his furnishing a personal bond for Rs.50,000/- (Rupees Fifty Thousand) with two sureties in the like sum to the satisfaction of the learned Sessions Judge, Thoubal. (b) The petitioner, on his being enlarged on bail, is directed to report before the learned Sessions Judge, Thoubal every Monday at 10.00 A.M. till the disposal of the appeal pending before this Court. (c) The petitioner shall not indulge in any criminal activities during the period of suspension of sentence. (d) The petitioner shall not leave the jurisdiction of the Court. (g) In case of violation of any condition, the prosecution may ask for cancellation of bail. (h) It is made clear that this Court has not delved into the merits of the appeal.