Pawan Kumar vs State And Anr

IA No.01/2016

Heard Mr. Sunil Sethi, learned senior counsel for the appellant and Mr. Rajesh Thapa, learned Deputy Advocate General for the State on this application, seeking suspension of sentence.

It appears that the appellant along with his brother Ashok Kumar were implicated in the case arising out of FIR No.234/2009 on 14th December, 2009 registered by the Police Station, Reasi under Sections 302/34 RPC.

Mr. Sethi has pointed out that a civil dispute regarding land which has been sold by the relative of Joginder Singh to the appellant was a subject matter of the civil litigation.

It appears that Kartar Singh father of the victim had filed a civil case against the appellant asserting the preemptory right with regard to the subject land. This civil litigation was pending. However, it was not disputed that the appellant was in possession of the subject land.

According to the appellant, on 14th December, 2009, Kartar Singh and his son Joginder Singh had collected building construction material with the intention of raising unauthorized construction on the land which was in possession of the appellant. This was objected to by the appellant. In the intervening incident, as per the appellant, the lintel of the illegal construction being raised by Kartar Singh fell on head of the Joginder Singh, and he received fatal injuries to which he succumbed later. The submission of Mr. Sethi is that FIR No.234/2009 was registered by the Police Station only under the provisions of Sections 307/34 of the RPC; that there is no evidence at all to show that the appellant had any intention to commit murder of the deceased person. Even if the prosecution case that the appellant and his brother had attacked the victim could be accepted, the injury was received during the course of the altercation and no case for murder was made out against the appellant. It is Mr. Sethi's submission that initially only a charge under Section 304-A of the RPC was laid by the trial court. It was only upon a challenge laid by the complainant before this court by way of a revision in which the learned Single Judge had directed the trial court to reconsider the matter with regard to framing of the charges. It was in these circumstances that the appellant was tried for commission of offences under sections 302/34 of the RPC. It is the submission of Mr. Sethi that the appellant has an extremely good case on merits. There is no evidence at all of motive and the prosecution evidence itself establishes that the complainant and the victim had in fact tried to encroach and grab the property which was in lawful possession of the appellant.

Mr. Sethi further submits that the appellant and his brother Ashok Kumar had stood tried before the Trial Court and stand convicted by the judgment dated 22nd November, 2016, in which they were convicted for commission of offence under Section 302 RPC. By the consequential judgment on sentence passed on 24th November, 2016, the appellant and his brother were sentenced to life imprisonment.

Mr. Sethi submits that the appellant as well his brother Ashok Kumar were arrested on 03rd December, 2009 and has remained in continuous incarceration since the date of their arrest. It is submitted that deeply distressed with this wrongful implication, Ashok Kumar, brother of the appellant committed suicide in custody on 19th May, 2016. It is submitted that in these circumstances the appellant is the sole support for his own family and the family of his brother (Ashok Kumar).

On the other hand, Mr. Rajesh Thapa, learned Deputy Advocate General for the State submits that the appellant stands convicted in a heinous offence and that no discretion should be exercised in his favour. It is submitted that the prosecution has a very good case on merits.

We had called for nominal roll from the jail with regard to period of incarceration and the jail conduct of the appellant. The same has been received. As per the nominal roll which has been received under cover of the letter dated 04th February, 2019 from the Deputy Superintendent, District Jail, Jammu, the appellant as under trial has undergone incarceration of 8 years, 8 months and 19 days. The nominal roll mentions the period after conviction only from 24th November, 2016 to 01st January, 2017 which was a period of only 1 month and 7 days. Therefore, the nominal roll has disclosed period of custody as 8 years 9 months and 26 days.

The nominal roll dated 04th February, 2019 is deficient in two regards, inasmuch it was required to disclose the period of custody till the date the report was being sent to court, which would be 04th February, 2019.

Unfortunately, the report discloses the period up to 01st January, 2017. Furthermore, the report makes no disclosure of the jail conduct of the convict.

If we consider the period from 1st January, 2017 till date, the appellant would have undergone one more year for an incarceration up to 04th February, 2019. Therefore, as on date, the appellant has undergone imprisonment of more than 9 years i.e. almost 10 years of incarceration.

We have considered the submissions made by the learned counsel for the parties. The Supreme Court in the case reported as AIR 2001 SC 1528 Akhtari Bi v. State of M.P., has held that if the appeal is pending for five years and there is no chance of appeal being heard in near future then in such a case the applicant/appellant should be enlarged on bail. In this regard, reference may also be made to the principles laid down in AIR 2017 SC 1568 Sandeep alias Raja Acharya v. State of Orissa.

Given the board of the court, there is little possibility of expeditious hearing of this appeal.

We are informed by Mr. Sethi that the appellant as well as his family is a permanent resident of Reasi and at the time of his implication in the case and arrest, the appellant was running his own business. It would, therefore, appear that the appellant has roots in society. It is submitted by Mr. Sethi that if remaining sentence of the appellant is suspended, there is little chance of his absconding from justice.

On a consideration of the totality of the circumstances and position of well settled judicial precedents, it would appear that the present case is a fit case for suspension of sentence.

In view of the above, we allow the application and direct as follows:

1). The appellant shall be released from the custody subject to his furnishing the bail bond in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the Registrar Judicial of this court. The remaining sentence imposed upon the appellant by order dated 24th November,2016 shall be suspended till further orders of this Court.

2) Upon release, the appellant shall report to the Station House Officer, Police Station, Reasi at any time during the day light hour on every second Saturday of the month.

This application is allowed in the above terms.

CRA No.52/2016:

By our order dated 29th January, 2019, we had called for nominal roll from the District Jail, Jammu. That under the cover of letter dated 04th February, 2019, nominal roll has been sent to this Court. We may note the following two deficiencies in the nominal roll received from the jail:

(i) While there is no column disclosing the age of the convict.

(ii) While mentioning the name of the convict, the jail authorities must disclose his age and the date on which the age has been mentioned.

There are a material circumstance which has to be considered by the court while considering the application for suspension of sentence.

It is imperative that the above information is positively placed in all the nominal rolls called up by this Court.

In view of the above, we direct as follows:

(i) Let a copy of the nominal roll received by this court and this order be sent to the Director General of Police and Director General of

Prisons to ensure compliance.

(ii) Let a copy of this order be sent to the Senior Superintendent, District Jail, Jammu who shall ensure that a correct and complete nominal roll of the appellant be sent to this Court within one week from the date of receipt of this order.

List the matter on 19th March, 2019 for the purpose of placing the nominal roll before us.