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2025 DIGILAW 931 (PAT)

Hanuman Sah @ Dipu Sah v. State of Bihar

2025-10-09

MOHIT KUMAR SHAH, SONI SHRIVASTAVA

body2025
Mohit Kumar Shah, J. – I.A. No. 01 of 2025: The present interlocutory application has been filed by the appellant No.2, namely Krishna Prasad, for suspension of his sentence and grant of bail during the pendency of the present appeal. 2. Heard Sri Sanjeet Kumar, learned counsel for the appellant, Sri Vikash Kumar Pankaj, learned counsel appearing for the informant and the learned Additional Public Prosecutor for the State Sri Bipin Kumar. 3. The aforesaid appeal has been preferred under Section 415 (2) of the Bhartiya Nagrik Suraksha Sanhita, 2023, against the judgment of conviction and the order of sentence dated 02.04.2025 and 07.04.2025 respectively, passed by the learned District and Additional Sessions Judge-V, East Champaran at Motihari in Sessions Trial No. 576 of 2023, arising out of Raxaul P.S. Case No. 152 of 2021, whereby and whereunder the appellants have been convicted under Section 302/34, 328/34, 420/34 and 406/34 of the Indian Penal Code (hereinafter referred to as the ‘IPC’) and they have been sentenced to undergo rigorous imprisonment for life under Section 302/34 of the IPC with fine of Rs.20,000/- and in default of the payment of same, they have been further directed to undergo simple imprisonment for three months. The Appellants have also been sentenced to undergo rigorous imprisonment for ten years under Section 328/34 of the IPC with fine of Rs. 10,000/- and in default of payment of the same they have been further directed to undergo three months simple imprisonment. The Appellants have further been sentenced to undergo rigorous imprisonment for seven years under Section 420/34 of the IPC with fine of Rs. 5,000/- and in default of payment of the same they have been further directed to undergo one-month simple imprisonment. Lastly, the Appellants have been sentenced to undergo rigorous imprisonment for three years under Section 406/34 of the IPC with fine of Rs. 5,000/- and in default of payment of the same they have been further directed to undergo one-month simple imprisonment. All the sentences have been directed to run concurrently. 4. Lastly, the Appellants have been sentenced to undergo rigorous imprisonment for three years under Section 406/34 of the IPC with fine of Rs. 5,000/- and in default of payment of the same they have been further directed to undergo one-month simple imprisonment. All the sentences have been directed to run concurrently. 4. The case of the prosecution in brief, as per the FIR bearing Raxaul P.S. Case No. 152 of 2021, registered under Sections 328, 302, 420 and 406/34 of the Indian Penal Code against the appellants on the basis of the written report of the father of the deceased, namely Vijay Kumar Sah (PW-9) is that the minor son of the informant, namely Piyush Kumar had fallen in bad company and used to steal money from his home. The informant has further stated in the written report that his son (deceased) had taken away huge sums of money from his house and had given it to the appellants and upon having come to know about it, while he was making a programme with his neighbors to go to the appellants and make inquiries from them in presence of his son, in the meantime on 27.04.2021, the appellant No.1 had taken the deceased to his shop, had mixed poison in the cold drink and made him drink the same, which the deceased had consumed and then he had left him at Kali Temple in a state of unconsciousness. Thereafter, the informant had taken the deceased to Duncan Hospital, Raxaul, where during the course of treatment in the I.C.U., his son died on 28.04.2021 at 04:00 PM. The informant has further stated that he is confident that the appellants have mixed poison in the cold drink, had offered the same to his son Piyush Kumar, who had consumed it and on account of the same his son has died. 5. Learned counsel for the appellant No.2 has submitted by referring to the evidence of PW 1, i.e. Dr. Sheena Evelyn, the doctor who had treated the deceased at Duncan Hospital, Raxaul that she has stated in her evidence that the deceased was brought to the hospital with the alleged history of consumption of Aluminum Phosphide, however the police was not informed immediately, leading to prejudice to the defence, inasmuch as in case the police would have arrived on the same day, proper investigation would have been conducted. It is further submitted that though PW-2 and PW-9 have stated in their evidence that the deceased had regained consciousness before his death at the hospital and told them about the appellants having mixed poison in the cold drink and having made him drink the same, leading to him becoming unconscious, however the said fact has not been mentioned in the written report as also the police was not informed about the said factum. It is also submitted that even the treating doctor and nurse, present in the I.C.U. of the hospital have not been examined, who would have been the best persons to disclose as to whether the deceased had regained consciousness or not. Thus, it is submitted that the impugned judgment of conviction and order of sentence is perverse, hence the appellant No.2 be granted bail. 6. Per contra, the learned counsel appearing for the informant as also the learned Additional Public Prosecutor for the State have vehemently opposed the prayer for bail made by the appellant No.2 and have at the outset submitted, by referring to the deposition of PW 1, Dr. Sheena Evelyn that she has stated in her evidence in paragraph no. 3 that she had examined the patient on 27.04.2021 and had also seen the police requisition before starting the treatment. Thus, it is submitted that there is an error of record at internal page no. 6 of the impugned judgment of conviction inasmuch as it has been mentioned therein that PW-1 had not seen the police requisition before starting the treatment. It is thus submitted that it is not correct to contend on behalf of the appellant No.2 that the police was not informed, athough the deceased was admitted with alleged history of having consumed Aluminum Phosphide. 7. It is next submitted by the learned counsel for the informant that PW 2, PW 3, PW 5 and PW 9 have all supported the case of the prosecution. 7. It is next submitted by the learned counsel for the informant that PW 2, PW 3, PW 5 and PW 9 have all supported the case of the prosecution. In this regard, reference has been made to the deposition of PW 2, Ajay Sah, Uncle of the deceased, who has stated that after his nephew was admitted at the hospital on 27.04.2021, he had regained consciousness for one hour on 28.04.2021 at 11:00 AM and upon being asked, he disclosed that he had gone and asked for money from both the two appellants, whereafter they have taken him in the shop, offered him cold drink to drink, whereafter he had consumed the same and then he felt giddiness, fell unconscious and regained consciousness at Duncan Hospital, Raxaul. Similar statement has also been made by PW 5, i.e., grandfather of the deceased, namely Kamal Sah and PW 9, Vijay Kumar Sah, who is the informant and father of the deceased, in their evidence. 8. It is also submitted by the learned counsel for the informant that even the FSL report dated 03.08.2023 shows that Aluminum Phosphide was detected in the contents sent for forensic examination. It is stated that it would be apparent from the evidence of PW 7, Dr. Kalim Ahmad that all viscera liver, lung, spleen, heart, kidney and gut loops were preserved and sent to Forensic Department for examination. The FSL report has also been proved and marked as Exhibit-7. Thus, it is submitted that there is ample evidence on record to justify the conviction of the appellants and their guilt has stood proved beyond all reasonable doubt. 9. Having heard learned counsel for the parties and having perused the materials on record, including the evidence of the prosecution witnesses, we are of the prima facie view that PW-2, PW-5 and PW-9 have all stated in their evidence that for one hour, the deceased had regained consciousness and disclosed before them about the appellants having offered cold drink, which he had consumed, whereafter he felt dizziness and became unconscious and then regained consciousness at the Duncan Hospital, Raxaul, however he died unfortunately. We also find that the viscera sent by the Doctor, i.e., PW 7, who had conducted the postmortem examination of the dead body of the deceased, to the Forensic Science Laboratory for forensic examination, has been examined by the Regional Forensic Science Laboratory, Muzaffarpur, and the same has been found to be containing Aluminum Phosphide as is apparent from the report of the Director, Regional Forensic Science Laboratory, Muzaffarpur, dated 03.08.2023, which has been marked as Exhibit-7. Thus, it cannot be said that the present case is such where prima facie this Court can come to a conclusion that the impugned judgment of conviction passed by the learned trial court would not be sustainable. 10. At this juncture, we would like to delve upon the law laid down by the Hon’ble Apex Court to the effect that at the time of considering the prayer of the appellants for suspension of sentence, this Court cannot re-appreciate the entire evidence in detail and thereby try to find out certain loopholes on the part of the prosecution. It is also not open for this Court to pick up few lacunas or loopholes here or there in the case of the prosecution. In this regard, we would like to refer to a judgment rendered by the Hon’ble Apex Court in the case of Omprakash Sahni vs. Jai Shankar Chaudhary, reported in (2023) 6 SCC 123 , paragraph nos. 30 to 34 whereof are reproduced hereinbelow: – “30. In Kishori Lal vs. Rupa [ (2004) 7 SCC 638 ], this Court has indicated the factors that require to be considered by the courts while granting benefit under Section 389 CrPC in cases involving serious offences like murder, etc. Thus, it is useful to refer to the observations made therein, which are as follows: – “4. 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 against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. 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 against. 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. 5. 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 earlier period when the accused-respondents were on bail. 6. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of 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 is 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.” 31. In Vijay Kumar vs. Narendra [(2002) 9 SCC 364] and Ramji Prasad vs. Rattan Kumar Jaiswal [ (2002) 9 SCC 366 ], it was held by this Court that in cases involving conviction under Section 302IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. In Vijay Kumar vs. Narendra [(2002) 9 SCC 364] and Ramji Prasad vs. Rattan Kumar Jaiswal [ (2002) 9 SCC 366 ], it was held by this Court that in cases involving conviction under Section 302IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. In Vijay Kumar [(2002) 9 SCC 364], 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. 32. The aforesaid view is reiterated by this Court in Vasant Tukaram Pawar vs. State of Maharashtra [ (2005) 5 SCC 281 ] and Gomti vs. Thakurdas [ (2007) 11 SCC 160 ]. 33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the trial court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the abovesaid question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach. 34. The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach. 34. In the case on hand, what the High Court has done is something impermissible. The High Court has gone into the issues like political rivalry, delay in lodging the FIR, some over-writings in the first information report, etc. All these aspects, will have to be looked into at the time of the final hearing of the appeals filed by the convicts. Upon cursory scanning of the evidence on record, we are unable to agree with the contentions coming from the learned Senior Counsel for the convicts that, either there is absolutely no case against the convicts or that the evidence against them is so weak and feeble in nature, that, ultimately in all probabilities the proceedings would terminate in their favour. For the very same reason we are unable to accept the contention coming from the convicts through their learned Senior Counsel that, it would be meaningless, improper and unjust to keep them behind the bars for a pretty long time till they are found not to be guilty of the charges.” 11. It would also be apt to refer to yet another judgment dated 09.04.2025 rendered by the Hon’ble Apex Court in the case of Janardan Ray vs. the State of Bihar & Etc. Anr., passed in Criminal Appeal Nos. 1892-1893 of 2025, paragraphs no. 7 and 8 whereof are reproduced herein below: – “7. Having regard to the aforestated settled legal position, we are of the opinion that the High Court has committed gross error in appreciating the evidence already appreciated by the Trial Court at the time of considering the applications seeking suspension of sentence pending the appeal. Since this was a case of conviction under Section 302 IPC, the initial presumption available to the accused before conviction, would not be available to him. The High Court could not have suspended the sentence, reappreciating the evidence at the stage of Section 389 and trying to pick up a few lacunae or loopholes here or there in the case of prosecution. The High Court could not have suspended the sentence, reappreciating the evidence at the stage of Section 389 and trying to pick up a few lacunae or loopholes here or there in the case of prosecution. The consideration of High Court to the submission made on behalf of the accused that he had not misused the liberty during the trial or that the appeal was not likely to be heard in near future, could not be said to be the proper consideration for suspending the sentence of the accused, who have been convicted for the serious offence under Section 302, IPC. It is only in rare and exceptional circumstances, the benefit of suspension of sentence should be granted by the appellate court to the accused convicted for the serious offence under Section 302, IPC. 8. In that view of the matter, the common impugned order being in the teeth of settled legal position, the same is untenable at law and deserves to be set aside. Accordingly, the impugned order dated 20.07.2024 is set aside.” 12. Having regard to the aforesaid settled legal position, we are of the opinion that neither it is open for this Court to reappreciate the evidence while considering the prayer for suspension of sentence nor it is open for this Court to pick up a few lacunas or loopholes here or there in the case of the prosecution. We also find that the only course open for this Court at the time of consideration of the prayer of convict for suspension of sentence and grant of bail is that it is required to be ascertained whether the convict has fair chances of acquittal and for the said purpose what is required to be looked into is something palpable i.e. something which is very apparent or gross on the face of the record, on the basis of which the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable but this Court is not required to re-appreciate the evidence at the stage of Section 389 Cr.P.C./430 (1) of the Bhartiya Nagrik Suraksha Sanhita, 2023. 13. 13. Now, coming back to the present case, we have considered the submissions advanced by the learned counsel for the parties in the backdrop of the principles of law laid down by the Hon’ble Apex Court in the cases of Omprakash Sahni (supra) and Janardan Ray (supra) and we, prima facie find that there is enough evidence in the form of testimony of PW 1, PW 2, PW 5, PW 7 and PW 9 so as to deter and preclude us from arriving at a prima facie satisfaction that the conviction may not be sustainable. We also find that learned counsel for the appellant No.2 has failed to point out that the present case is a rare and exceptional case in which this Court can grant suspension of sentence of the appellant No.2 and release him on bail. 14. Thus, taking a holistic view of the facts and circumstances of the present case, as discussed hereinabove, having considered the submissions made by learned counsel for the parties, taking into account the law laid down by the Hon’ble Apex Court in the aforesaid two cases and for the foregoing reasons, we are of the view that the present case is not a fit case which warrants suspension of sentence and grant of bail qua the appellant No.2. Accordingly, the prayer made by the appellant No.2 for suspension of sentence and grant of bail stands rejected. 15. Consequently, the present petition, i.e. I.A. No. 01 of 2025 stand dismissed.