Showkat Ahmad Rather vs State

Ali Mohd. Magrey, J.—This is an application filed on behalf of the convict Showkat Ahmad Rather, praying for suspension of sentence till

final disposal of the appeal. Alternatively, it is prayed that the convict may be granted bail till the appeal is decided. The applicant/convict was

charged for the commission of offences punishable under sections 306, 498-A RPC in a case arising from FIR No. 73 of 2006 registered at Police

Station, Sumbal. The learned Principal Sessions Judge, 13an-dipora, vide his judgment dated 26.11.2013 found the convict guilty of both the

offences and, accordingly, convicted him. Vide order dated 29.11.2013, the learned trial court has awarded a punishment of two years' rigorous

imprisonment and fine of Rs. 5000.00 for the commission of offence under Section 498-A RPC and seven years' rigorous imprisonment and fine

of Rs. 10,000.00 for the commission of offence under Section 306 RPC. The sentences have been ordered to run concurrently and in default of

payment of fine, the convict has been order to undergo a simple imprisonment for a further period of 3 months each under Section 498-A and 306

RPC. The period of detention already undergone by the convict, either during the course of investigation or the trial of the case, has been ordered

to be set off against the substantive sentence. Against the said judgment of convict and order of sentencing, the convict has filed Criminal Appeal,

registered as Cr. Appeal No. 22/2013.

Suspension of the conviction and/or the grant of bail pending decision in the appeal is sought on the grounds that the convict is a young bread

earner for his family who has been imprisoned for quite a long time and that his further detention will lead his family to starvation; that the convict

belongs to a poor, but a respectable family and his arrest by police has brought his family to ridicule and disrespect; that the convict has to

prosecute his appeal and he needs funds which can be arranged by him only when he is out of jail; that the Court because of overload of cases

cannot visualize final hearing of the case in near future.

The application has been contested by the State, inter alia, on the grounds that there are no justifiable reasons available to the applicant to seek

suspension of sentence or grant of bail till the disposal of the appeal. It is stated that the offences committed by the convict have been proved to the

hilt by oral as well as circumstantial evidence and that there are no cogent and sufficient grounds available to the applicant to challenge the verdict

that has resulted in his conviction.

I have heard learned counsel for the parties, perused the record and considered the matter.

The prosecution case, briefly put, was that the deceased, Shaheena, wife of the convict and sister of the complainant, died of consuming

Dichlorovos (an Organo Phosphorus Insecticide) at her matrimonial home, i.e., the house of the convict. The convict was charged for the

commission of the aforesaid offences on the allegation that he was demanding dowry from the deceased and harassing her and thus abetted the

commission of suicide by the deceased. At the trial, the prosecution examined PW1, Maqsood Ahmad Sofi, who is the complainant and brother of

the deceased; PW2, Mohammad Maqbool Sofi, another brother of the deceased; PW3, Arshid Abdullah, a neighbour of the complainant; PW4,

Khazir Mohammad Sofi, father of the deceased; PW5, Mst. Sara, mother of the deceased; PW7, Mst. Misra, a neighbour of the convict; PW8,

another neighbour of the convict and PW12, Dr. Manzoor Ahmad Bhobi who conducted the examination and post mortem of the dead body.

Prosecution witnesses, PW1, PW2, PW3, PW4 and PW5 have all in their respective statements deposed before the trial Court that whenever the

deceased visited her parental house, she would be gloomy and would complain that the convict was demanding dowry from her. The Doctor,

PW12, who conducted the autopsy of the dead body, opined that the apparent cause of death seems to be some sort of poisoning. The FSL

report, though not proved at the trial on account of non-production of the FSL Expert as witness, opined that it was Organo-Phosphorus

Insecticide.

The convict has, admittedly, chosen not to adduce any evidence in his defence. Therefore, there is no evidence on record to contradict even

remotely or suggestively what has come on record by way of deposition of the prosecution witnesses who, as said above, have deposed against

the convict.

Learned counsel for the applicant-convict cited and relied upon the decisions of the Supreme Court in Kashmira Singh Vs. The State of Punjab,

and Gudikanti Narasimhulu and Others Vs. Public Prosecutor, High Court of Andhra Pradesh, and argued that the very fact that the appeal filed

by the convict is pending before this Court and it is likely to take time to decide the appeal, the convict, in light of the law laid down by the

Supreme Court deserves to be enlarged on bail. He submitted that the convict hails from a respectable family and he is not likely to flee the justice.

On the other hand, learned Additional Advocate General, cited and relied upon two decisions of the Supreme Court in Central Bureau of

Investigation, New Delhi Vs. M.N. Sharma, and K.C. Sareen Vs. C.B.I., Chandigarh, and submitted that suspension of order of conviction during

pendency of appeal is not permissible. However, these two decisions are totally irrelevant, having been rendered in context of Prevention of

Corruption Act.

So far as the decisions cited and relied upon by the learned counsel for the convict are concerned, in Kashmira Singh v. The State of Punjab

(supra), the Supreme Court observed that the practice not to release on bail a person who has been sentenced to life imprisonment was evolved in

the High Courts and in the Supreme Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not

be let loose so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person

would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an

unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six

years. In context of the said observation, the Supreme Court laid down that:

...It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this

Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent

grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his

conviction and sentence.

The facts of that case and the principle laid down therein is on the face of it distinguishable vis-a-vis the instant case. In the instant case, the appeal

has been pending for the last just less than three months, having been filed on 12.12.2013. In Gurdikanti Narasimhulu v. Public Prosecutor (supra),

the Supreme Court, inter alia, laid down that 'the nature of the charge is the vital factor and the nature of the evidence is also pertinent. The

punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue'.

It may be mentioned here that normally an Appellate Court will not grant bail to an accused after conviction unless, on perusal of the evidence,

it is prima facie satisfied that there are grounds for doubting the correctness or legality of the conviction or sentence. The bail can be granted only

where the Court is uncertain as to whether the accused could be said to be guilty or not of the offences he is charged with. The discretion of the

Court is to be exercised according to the circumstances of a case and the burden has to lie on the accused to show that there was any patent error

in the conviction. In the instant case, as mentioned above, as against eight prosecution witnesses, out of whom 5 witnesses have deposed about the

demand for dowry and harassment caused to the deceased, the convict has opted not to adduce any defence evidence. It is true that the

prosecution has not examined the FSL Expert to prove the report made by FSL, but whether such non-examination would be fatal to establishing

the cause of death of the deceased would need and indepth and meticulous examination of the evidence on record which cannot be done at this

stage for the purpose of deciding the present application.

In the above circumstances, this is not a case warranting exercise of the discretion of the Court in favour of the convict at this stage. The

application is, accordingly, dismissed. However, I think it would meet the ends of justice if the appeal itself is decided expeditiously. Accordingly, it

is directed that the appeal be listed immediately after four weeks for final hearing before the roster Bench.