Syed Mian vs The State of Jharkhand

D.N. Patel, J.—The application has been preferred u/s 389 of the Code of Criminal Procedure for suspension of sentence.

This is a fourth attempt for getting an order for suspension of sentence, during pendency of this appeal, awarded by the trial court for the offence punishable u/s 802 to be re id with other Sections of the Indian penal Code.

We have heard learned, counsel for both sides at length

Having heard learned Counsel for both sides and looking to the evidence before the trial court, it appears that there is (sic) prima facie case against the applicant-accused.

learned Counsel for the applicant has argued out the case, in detail and at length. As the criminal appeal is pending, we are not much analyzing the evidence on record. Looking to the deposition of P.W. 5, who is an eye witness of the incident, suffice it to say that there is prima facie case against the present applicant-accused.

(i) As per this witness, the weapon used is (sic) weapon and the injuries have been caused at the vital part of the body of the deceased, as inflicted in the post mortem report.

(ii) Looking to the deposition of P.W. 6 (Krishna) Murari), who is a doctor, it appear that his deposition is corroborated by the deposition of P.W 5.

(iii) On a previous occasions also, applications for suspension of sentence preferred on various points of time have been rejected; firstly on 14th June, 2005, secondly on 7th August, 2006 and thirdly on 11th September, 2007.

Thus, looking to the deposition of the prosecution witnesses, as stated hereinabove, it appears that there is prima facie case against the present applicant-accused.

Looking to the gravity of the offence and the quantum of punishment and the manner in which the present applicant-accused (sic) involved, we are not inclined to suspend the sentence awarded to the trial court to applicant No. 1.

Learned Counsel for the applicant, submitted that the sentence, awarded to the other co-accused, has been suspended looking to their old age.

It has been held by the Hon''ble Supreme Court in the case of Khilari Vs. State of U.P. and Another, especially in Pararaph-10 which reads as under.

In Anwari Begum Vs. Sher Mohammad and Another, it was, inter (sic) observed as follows:

Even on a cursory perusal the (sic) Court''s order shows complete non-application of mind. Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing order on bail applications, yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing, with the application for bail is, required to exercise its discretion in a judicious manner and as a mater of course.

There is a need to indicate in the order, reasors for prima facie concluding why bail was being granted particularly where an accused was charge of having committed a serious offence. It is necessary for the points dealing with application for bail to consider among other circumstances, the following actors also before granting bail, they are:

The nature of accusation and the severity of punishment in case of conviction and, the nature of supporting evidence;

Reasonable apprehension of tampering of the witness or apprehension of threat it to the complainant;

Prima facie satisfaction of the Court in support of the charge.

Any order dehors of such reasons suffers from non-application of mind as was noted by this Court, in Ram Govind Upadhyay Vs. Sudarshan Singh and Others, Puran Vs. Rambilas and Another etc. etc., and in

Thus, the aforesaid can be the only ground for suspension of sentence i.e. a prima facie case must be appreciate by the Court, whenever there is an application u/s 389 pi of the Code of Criminal Procedure. The gravity of offence, quantum of punishment and the manner, in which the applicant-accused is involved in the offence, ought to have been appreciated by the court, t has been held by the Hon''ble Supreme Court in several ''decisions'' that the applicant-accused having been enlarged on bail during trial cannot be a ground for suspension of sentence (2004) 7 SCC 639.

It has been held by the Hon''ble Supreme Court in the case of Ramji Prasad Vs. Rattan Kumar Jaiswal and Another, , in paragraph No. 3, as under:

Absolutely no reason is shown by the learned Single Judge for adopting this exceptional course in a case where an accused was found guilty by the trial court u/s 302 of the Indian Penal Code. The normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted.

(Emphasis supplied)

It has been held by the Hon''ble Apex Court in the case of State of Haryana Vs. Hasmat, in paragraph Nos. 6 to 9, as under:

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. If he is in confinement, the said court can direct that he be released on bail (sic) 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 matter of routine.

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 pf liberty during the period the accused-respondent was granted parole.

The learned Sessions Judge, Gurgaon by a judgment dated 24-10-2001 had found the accused-respondent guilty. Criminal Appeal No. 100-DB of 2002 was filed by the respondent. The fact that during the pendency of the appeal the accused-respondent was on parole goes to show that initially the accused-respondent wad not given the benefit of suspension of execution of sentence. The mere fact that during the period of parole the accused has not misused the 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 was 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.

In Vijay Kumar v. Narendra and Rumji Prasad v. Rattan Kumar Jaiswai it was held by this Court that in cases involving conviction u/s 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. The impugned order of the High Court does not meet the requirement. In Vijay Kumar case it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable u/s 302 IPC, the Court should consider the "elevant 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 of desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. These aspects hove not been considered by the High Court, which passing the impugned order.

(Emphasis supplied)

Likewise, the old age also cannot be the sale ground for suspension of sentence, after conviction by the trial court u/s 389(2) of the Code of Criminal Procedure. In this context, it us vehemently argued by the learner counsel for the appellant that the appellant accused is now 70 yews old. The A.P.P. submitted that the offence of murder was committed in the year 1999. Thus, when offence is committed at an advance ape, accused cannot be given benefit of suspension of sentence on the ground of further advance age.

This Court has seen a prima facie case against the applicant accused. The case of the prosecution is based upon the evidence of eye witness (P.W. 5) to be read with the medical evidence (P.W. 6). The deposition of P.W. 5 is fully corroborated by the medical evidence of (P.W. 6 and there is also enough corroborations by the evidences of the other prosecution witnesses, led before the trial court. Looking to these evidences and the gravity of offence and the quantum of punishment and the manner in which the firearm is used and the injury caused at the vital part of the body of the deceased, we are not inclined to suspend the sentence awarded of the trial court to the ''present applicant No. 1, though he is of advance age. This is ground is not a ground in the eyes of law, as stated hereinabove.

Learned Counsel for the applicant has submitted that whatsoever has been stated by the eye witness in his deposition, is not stated in the First Information Report. This contention is also not accepted by this Court for suspension of sentence, because the First Information Report is the rough sketch of the whole incident. It is not. in encyclopedia of the whole case. In the facts of the present case, an eye witness, who is P.W. 5, has given clear deposition before the trial court and, therefore, |he contention of the learned Counsel for the applicant that whatsoever his been stated by the eye witness in his Reposition is not there in the First Information Report, and, therefore, the sentence must be suspended, is not accepted by this Co aft. This contention has, therefore, no merit for appreciating an application u/s 389(2) of the Code of Criminal Procedure.

16.There is no substance in the present interlocutory Application (I.A. No. 1806 of 2009) and hence the same is hereby dismissed. Accordingly, I.A. No. 1806 of 2009 stands disposed of.

Though the learned Counsel has raised much voice, even after disposal of the matter, that all the grounds, which are argued out in the present application, should be dealt with in this order, we are not Supposed to deal with all those argument canvassed by analyzing fine nicety of the evidences, at this stage, which shall be dealt with at the time of final hearing.