Kewal Krishan @APPELLANT@Hash State Of J&K.

IA No.01/2018

In the instant application, filed under Section 426 of Code of Criminal Procedure, the applicant/appellant inter alia seeks suspension of conviction/ sentence awarded by the learned Principal Sessions Judge, Reasi vide judgment/order dated 15.02.2018/16.02.2018 respectively in File No.32/Sessions under Section 376/323 RPC in FIR No.111/2014, registered at Police Station, Reasi.

In the application, it has been stated that the appellant/applicant has filed the accompanying appeal against the judgment of conviction/ order of sentence dated 15th February, 2018/16th February, 2018 respectively for commission of offence under Sections 376/323 RPC, whereby he has been sentenced for imprisonment for a period of eight years and fine of Rs. 10,000/-. It is further stated that the judgment of conviction passed by the Court below suffers from various illegalities, inasmuch as, no offence under Sections 376/323 RPC has been proved against the appellant, yet the appellant has been convicted and sentenced for commission of offence under Sections 376/323 RPC by the learned Court below without proper appreciation of evidence and law.

It is also stated in the instant application that though the yardsticks and factors for suspending the sentence and conviction are distinct, yet in a case, where on account of the non-suspension of conviction serious consequences are bound to result, appellant is a young person having four minor daughters, who are totally dependent on the earning of the appellant as labourer and there is no likelihood of hearing the appeal finally in near future because of the heavy pendency of the cases in the Court. Since the appellant, who was on bail during the trial never misused the concession of bail. Therefore, the conviction and sentence are required to be stayed. Even the sentence imposed upon the appellant is required to be suspended for the reasons that there are serious infirmities in the impugned judgment inasmuch as the appellant has been convicted by the Court below despite the fact that none of the witnesses has corroborated and the prosecution has failed to prove the guilt of the accused beyond any reasonable doubt.

Respondent has filed objections to the instant bail application. The stand taken in the objections is that the judgment delivered by the learned Trial Court has been tendered on the basis of cogent evidence that was adduced before the said Court leading to the conviction of the appellant qua the offence with which the appellant was charged. The appellant has been rightly convicted by the learned Trial Court for heinous offence punishable under section 376/323 of RPC and the said judgment does not suffer from any infirmity. The appeal filed by the appellant is completely devoid of merits and deserves to be rejected by this Court. The appellant has been convicted for the commission of offence punishable under Sections 376/323 RPC and has been handed over well deserving sentence by the learned Trial Court. The appellant has no case for the suspension of sentence and consequently not entitled to any bail whatsoever. The Trial Court has passed a reasoned & valid judgment dated 15.2.2018, convicting the appellant for the commission of heinous offence punishable under section 376/323 of RPC and that being the case, the appellant's sentence does not deserve to be suspended and, accordingly, the appellant has no case for being enlarged on bail.

I have heard learned counsel for both sides and gone through the law on the subject.

Section 426 of the Code of Criminal Procedure, deals with the subject. It reads as under "426 . Suspension of sentence pending the appeal; release of appellant on bail.

(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended."

From perusal of Section 426 Cr.P.C., it is evident that save and except, the matter falling under category of sub- section-3 neither there happens to be any principle laid down nor criteria has been fixed for consideration of the prayer of the appellant/convict and further, having a judgment of conviction erasing the presumption leaning in favour of accused regarding innocence till contrary recorded. There is, thus, a distinction in between pre-conviction as well as post-conviction prayer for granting or refusing the bail.

On account of deficiency of judges in comparison to filing/ pendency of the appeal, backlog has gone up in such a manner that it looks, if not impossible but a exceptional task to hear and decide the appeal at an earliest; so every case of such like nature has to be considered on facts and while granting bail Court has to evaluate certain facts of each case; while granting bail or suspending the sentence court should give reasons.

In 1999 Cr.LJ 2568 in case titled Bhagwam Rama Shinde Gosai and Ors. vs State of Gujarat on 12 May, 1999, it is held as under:-

"This is a case where appellants have been convicted by the trial court of the offence under Section 392 read with Section 397 and each of Them was sentenced to rigorous imprisonment for 10 years. They filed an appeal before the High Court of Gujarat and moved for suspension of sentence, but that was not allowed. At a later stage they again moved for suspension of sentence and that too was dismissed by the impugned order. Unfortunately, when they made a motion for having their appeal expedited that also was declined by the High Court on the premise that the High Court is having older appeals on the board.

When a convicted person is sentenced to fixed period of sentence and when he files 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 limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when motion for expeditious hearing 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 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.

In this case as the High Court was not inclined to hear the appeal expeditiously we are of the view that the sentence passed on appellants can be suspended on some stringent conditions. We, therefore, suspend the sentence and direct the appellants to be released on bail on each of them executing a bond to the satisfaction of Additional Sessions Judge, Nadiad. We direct the appellants to report to Kapadwang Police Station on all Mondays and Thursdays between 4.00 P.M. and 6.00 P.M. until disposal of the appeal pending before the High Court."

In the preset case, from the perusal of judgment and school certificate, it is evident that victim was more than 16 years at the time of occurrence and PW Doctor has stated that there was no marks of injury deducted; as per pathology report, there was no presence of spermatozoa in the smear; there is also delay of about 7 days in lodging FIR. Appellant-accused was arrested on 21.09.2014 and was enlarged on bail by trial court on 18.01.2017, thereafter he was taken in custody on 15.2.2018 and since then he is in custody. Therefore, he has undergone more than three years of imprisonment. Every person is presumed to be innocent, unless his guilt is established by competent court. First appeal is always considered as continuation of original trial. This court is already burdened with so many cases especially appeal; it will take time to hear the appeal.

So I am of the considered view that there is a ground to suspend the sentence at this stage. Hence, sentence passed by court below is suspended. Accused/appellant shall be enlarged on bail subject to furnishing of surety bond and personal bond of Rs. 50,000/- (Rupees fifty thousand) each subject to satisfaction of Registrar judicial. Provided appellant shall not come in contact with complainant party; shall attend the court on each and every date; shall not leave jurisdiction of court; shall report before concerned police station at 1st day of each month till appeal is decided. In case of violation of any condition, prosecution or complainant may ask for cancellation of bail. IA No.01/2018 stands disposed of.