Jammu & Kashmir High Court
Rakesh Kumar (Age 32 Years) S/O Thoru vs State Of Jammu & Kashmir Through Chief on 1 August, 2023
Bench: Tashi Rabstan, Mohan Lal
Sr. No. 34
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRA No. 12/2018
CrlM Nos. 2078/2022, 245/2022,
511/2023 & 555/2020
c/w
CONF No. 05/2018
Reserved on :25.07.2023
Pronounced on :01.08.2023
Rakesh Kumar (age 32 years) S/O Thoru .....Appellant(s)
Ram R/O Village Chowadi Tehsil &
District Jammu (a/p lodged in District Jail
Ambphalla Jammu).
Through :- Sh. O.P. Thakur, Sr. Advocate with
Ms. O.S. Bandral, Advocate
V/s
State of Jammu & Kashmir through Chief .....Respondent(s)
Secretary Govt. Of J&K Civil Secretariat
Jammu/Srinagar.
Through :- Sh. Amit Gupta, AAG.
CORAM: HON‟BLE MR. JUSTICE TASHI RABSTAN, JUDGE.
HON‟BLE MR. JUSTICE MOHAN LAL, JUDGE
O R D E R
01 . 08 . 2023 CrlM 2078/2022
1. By this order , we would dispose of an application preferred u/s 426 Cr.pc by appellant/convict for suspension of his sentence and release on bail in case FIR No. 11/2012 of Police Station Channi Himmat Jammu, wherein, the trial court of Ld. 3rd Addl. Sessions Judge Jammu (Fast Track Court) vide it's judgment of conviction and order of sentence dated 15.03.2018 r/w 17.03.2018 after finding appellant/accused guilty for commission of offence of rape of a minor girl 8 years of age u/s 376 RPC has awarded sentence of life imprisonment and fine of ₹ 50000/- to him.
2. Aggrieved of the impugned judgment of conviction and order of sentence, appellant/convict has filed an appeal u/s 410 of Code of Criminal Procedure (hereinafter referred as the „Code‟) bearing Criminal Appeal No. 12 of 2018 which is pending disposal before this court and is at the stage of final hearing.
3. Appellant/convict has claimed suspension of his sentence and his release on bail on the grounds, that appellant was arrested on 27.01.2012 and remained in custody during trial, was granted only one day parole for participating in the marriage ceremony of his younger brother. It is contended, that after 2 CrlM No. 2078/2022 conviction he continues to be in custody in District Jail Amphalla Jammu, has almost completed 10 years and 10 months of sentence, has not committed any offence, trial court has not appreciated the evidence in it's right perspective as well as the identification parade has not been conducted in accordance with law, appeal is pending for the last more than 5 years and there is no likelihood of hearing the appeal in near future. It is stated, that in recent judgments of Hon'ble Supreme Court it has been held, that in case of convict/convicts where appeal cannot be disposed of within 5 years by the High Court and where the convict/convicts have completed 10 years of imprisonment in cases where they are convicted for life imprisonment, said convicts are entitled for bail, and the same principle squarely applies to the case in hand, thereby, appellant/convict is entitled to suspension of sentence and release on bail.
4. Respondent by filing objections has opposed the application seeking suspension of sentence and release of appellant on bail on the grounds, that the Ld. Presiding Officer of 3rd Addl. Sessions Judge Jammu (Fast Track Court) vide it's judgment of conviction dated 15.03.2018 and order of sentence dated 18.03.2018 has sentenced appellant for imprisonment for life and fine of ₹ 50000/- for commission of offence by the appellant punishable u/s 376 of RPC. It is contended, that appellant has committed rape upon minor girl of 8 years of age, has pushed her into deep emotional crises to face the trauma and agony throughout her life, does not deserve any lenient view, interest of general public and society is involved. It is stated, that appellant has committed most brutal, horrendous and shocking crime, and there is every likelihood of appellant misusing the liberty of bail who may even jump over the concession of bail. Prayer has been made for rejection of application for suspension of sentence and grant of bail.
5. Sh. O.P. Thakur Ld. Counsel for appellant/convict has sought the suspension of the sentence and release of appellant on bail by vehemently canvassing arguments, that for the last more than 5 years the appeal is pending disposal before the High Court and where the appeal cannot be disposed of by the High Court the convict can be released on bail. It is argued, that as per the recent judgment of Hon'ble Supreme Court of the year 2022, all persons/convicts who have completed 10 years of sentence and the appeal is not in the proximity of hearing, the convict should be released on bail. It is vehemently argued, that as the appellant/convict is lying in judicial custody in District Jail Amphalla Jammu where he is 3 CrlM No. 2078/2022 serving his sentence term for the last more than 10 years, in view of the judgments of Hon'ble Supreme Court and as the appeal of appellant is pending before the High Court for more than 5 years and the appellant even has served more than 10 years of imprisonment out of the life term imprisonment, appellant is entitled to be released on bail. To support his arguments, Ld. Counsel for appellant has relied upon the judgments of Hon'ble Supreme Court reported in (i) 2001 Legal Eagle (SC) 504 Supreme Court of India [Akhtari Bi Versus State of Madhya Pradesh] & (ii) 2022 Live Law(SC) 788 Supreme Court of India [SONADHAR Versus THE STATE OF CHHATISGARH] as well as the judgments of J&K High Court viz; (i) IA No. 1/2018 in CRA No. 11/2015 [Vikram Massih-- Appellant V/s State Through SHO Police Station Pacca Danga Jammu] &
(ii) CrlA(D) No. 5/2021 CrlM No. 253/2021 [Liaqat Ali -Appellant V/s UT of J&K & Ors.].
6. Sh. Amit Gupta Ld. AAG for respondent has strenuously opposed the application for suspension of sentence and grant of bail to the appellant by vigorously articulating arguments, that u/s 389 Cr.pc dealing with the provision of suspension of sentence, as per the recent judgment of Hon'ble Supreme Court, to suspend the sentence there must be something apparent on the face of record on the basis of which appellate court can arrive at prima-facie satisfaction that the case presented by the prosecution and accepted by the trial court without re-appreciating the evidence if ultimately find that the conviction is unsustainable and the convict has fair chance of acquittal, only then the sentence can be suspended. It is enthusiastically argued, that in the case in hand, the trial court after appreciating the prosecution evidence has found accused guilty for commission of offence u/s 376 RPC and convicted him for life imprisonment, and this appellate court at the stage of suspension of sentence u/s 389 Cr.pc cannot re- appreciate the prosecution evidence and render a finding that the conviction is not sustainable and there are fair chances of acquittal of convict, therefore, the application for suspension of sentence and release of appellant on bail being legally unsustainable, may be disallowed and rejected. To buttress his arguments, Ld. AAG has relied upon the recent judgment of Hon'ble Supreme Court rendered on May 2nd 2023 in 2023 Live Law (SC) 389 Supreme Court of India [OMPRAKASH SAHNI Versus JAI SHANKAR CHAUDHARY & ANR. ETC.].
4 CrlM No. 2078/20227. We have heard Sh. O.P. Thakur Ld. Sr. Advocate appearing for appellant, Sh. Amit Gupta Ld. AAG for respondent/state and examined the impugned judgment of conviction and sentence rendered by the trial court. We have also gone through the entire record of the case and scanned the ratios of the judgments relied by Ld. Counsel for the parties.
8. Appellant/convict was put to trial in the court of Ld. 3 rd Addl. Sessions Judge Jammu (Fast Track Court) in case FIR No. 11/2012 for commission of offence punishable u/s 376 RPC for committing rape upon a minor girl of 8 years of age. The trial court vide it's judgment dated 15.03.2018 held, that the prosecution has proved it's case beyond reasonable doubt and after holding the appellant guilty for commission of offence of rape punishable u/s 376 RPC convicted him and sentenced vide order dated 17.03.2018 for imprisonment for life and also imposed fine amount of ₹ 50000/-. The said judgment of conviction and order of sentence has been assailed by appellant/convict in CRA No. 12/2018 which is pending disposal before this court and is at the stage of final hearing.
9. In case law reported in 2001 Legal Eagle (SC) 504 Supreme Court of India [Akhtari Bi Versus State of Madhya Pradesh] relied by Ld. Counsel for appellant, Hon'ble Supreme Court of India suspended the sentence and granted bail to an old and infirm lady convicted for life imprisonment u/s 302 IPC for murder of her daughter-in-law on the ground that though it is not absolute right of convict but there was no possibility of hearing of appeal which was pending before the High Court for 5 years. In 2022 Live Law (SC) 788 Supreme Court of India [SONADHAR Versus THE STATE OF CHHATISGARH] relied by Ld. Counsel for appellant, Hon'ble Supreme Court granted bails to accused/convict who had undergone more than 10 years imprisonment in life sentence cases. In IA No. 1/2018 in CRA No. 11/2015 [Vikram Massih--Appellant V/s State through SHO Police Station Pacca Danga Jammu] relied by Ld. Counsel for appellant, single bench of J&K High Court granted bail to the accused/convict on the ground that the conviction appeal was pending more than 5 years and there was no likelihood of the appeal being decided in near future. In CrlA(D) No. 5/2021 CrlM No. 253/2021 [Liaqat Ali -Appellant V/s UT of J&K & Ors.] also relied by Ld. Counsel for appellant, the sentence of conviction imposed upon the accused/convict of 20 years rigorous imprisonment for commission of rape u/s 376 RPC was reduced/altered/modified to minimum sentence of 7 years at the time of disposal of the main conviction appeal.
5 CrlM No. 2078/202210. Ld. AAG for respondent has relied upon a recent judgment of Hon'ble Supreme Court of India dated May 2, 2023 reported in 2023 Live Law (SC) 389 Supreme Court of India [OMPRAKASH SAHNI Versus JAI SHANKAR CHAUDHARY & ANR. ETC.]. In the judgment (Supra) while appreciating the provision of section 389 Cr.pc, Hon'ble Supreme Court while quashing/setting aside the order passed by High Court of judicature at Patna suspending the substantive order of sentence of life imprisonment imposed by trial court on respondents 1,3&4 in sessions trial No. 280/2019 for commission of offences punishable u/ss 302,120-B,506,34 of Indian Penal Code 1860 (for short the IPC) r/w section 27 of Arms Act 1959 for commission of offence of murder, and observing that the sentence can be suspended only when the appellate court without reapreciating the evidence at the stage of section 389 Cr.pc the convict has fair chances of acquittal, in head note & in paras 23,24,26,28,29,30,31,32,33 of the judgment held as under:-
Code of Criminal Procedure, 1973; Section 389- to suspend the substantive order of sentence under Section 389 Cr.P.C., there ought to be something 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 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 in which, ultimately the convict stands for fair chances of acquittal. (Para 33) Code of Criminal Procedure, 1973; Section 389-the Appellate Court should not reappreciate the evidence at the stage of Section 389 of the Cr.P.C. and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach. (Para 33)
23. The principle underlying the theory of criminal jurisprudence in our country is that an accused is presumed to be innocent till he is held guilty by a court of the competent jurisdiction. Once the accused is held guilty, the presumption of innocence gets erased. In the same manner, if the accused is acquitted, then the presumption of innocence gets further fortified.
24. From perusal of Section 389 of the CrPC, it is evident that save and except the matter falling under the category of sub-section 3 neither any specific principle of law is laid down nor any criteria has been fixed for consideration of the prayer of the convict and further, having a judgment of conviction erasing the presumption leaning in favour of the accused regarding innocence till contrary recorded by the court of the competent jurisdiction, and in the aforesaid background, there happens to be a fine distinction between the prayer for bail at the pre-conviction as well as the post-conviction stage, viz Sections 437, 438, 439 and 389(1) of the CrPC.
26. This Court, in the case of Ash Mohammad v. Shiv Raj Singh alias Lalla Babu and Another, reported in (2012) 9 SCC 446, has observed in para 30, as follows:
"30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is 6 CrlM No. 2078/2022 heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction on liberty of the accused.‖ (Emphasis supplied)
28. In Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi), reported in (2008) 5 SCC 230 (popularly known as the Jessica Lal murder case), this Court had the occasion to consider the rival submissions as well as various judicial pronouncements referred to by both the sides over the prayer for bail. Thus, it has been held as follows:
"19. We are conscious and mindful that the main matter (appeal) is admitted and is pending for final hearing. Observations on merits, one way or the other, therefore, are likely to prejudice one or the other party to the appeal. We are hence not entering into the correctness or otherwise of the evidence on record. It, however, cannot be overlooked that as on today, the applicant has been found guilty and convicted by a competent criminal court. Initial presumption of innocence in favour of the accused, therefore, is no more available to the applicant.
30. ....In the above cases, it has been observed that once a person has been convicted, normally, an appellate court will proceed on the basis that such person is guilty. It is no doubt true that even thereafter, it is open to the appellate court to suspend the sentence in a given case by recording reasons. But it is well settled, as observed in Vijay Kumar [(2002) 9 SCC 364 : 2003 SCC (Cri) 1195 : JT 2002 Supp (1) SC 60] 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 all 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, the desirability of releasing the accused on bail after he has been convicted for committing serious offence of murder, etc. It has also been observed in some of the cases that 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.
31. In Hasmat [(2004) 6 SCC 175 : 2004 SCC (Cri) 1757 :
JT (2004) 6 SC 6] , this Court stated : (SCC p. 176, para 6) ―6. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the applicant 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 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.‖ (emphasis supplied) 7 CrlM No. 2078/2022
32. The mere fact that during the period of trial, the accused was on bail and there was no misuse of liberty, does not per se warrant suspension of execution of sentence and grant of bail. What is really necessary is to consider whether reasons exist to suspend execution of the sentence and grant of bail.‖ (Emphasis supplied)
29. In the case of Atul Tripathi v. State of Uttar Pradesh and Others, reported in (2014) 9 SCC 177, whereunder apart from identifying the differences of consideration of prayer for grant of bail relating to pre- conviction stage as well as post-conviction stage, it has been held in para 14 which is as follows:
"14. Service of a copy of the appeal and application for bail on the Public Prosecutor by the appellant will not satisfy the requirement of the first proviso to Section 389(1) CrPC. The appellate court may even without hearing the Public Prosecutor, decline to grant bail.
However, in case the appellate court is inclined to consider the release of the convict on bail, the Public Prosecutor shall be granted an opportunity to show cause in writing as to why the appellant be not released on bail. Such a stringent provision is introduced only to ensure that the court is apprised of all the relevant factors so that the court may consider whether it is an appropriate case for release having regard to the manner in which the crime is committed, gravity of the offence, age, criminal antecedents of the convict, impact on public confidence in the justice-delivery system, etc......
30. In Kishori Lal v. Rupa and Others, reported in (2004) 7 SCC 638, this Court has indicated the factors that require to be considered by the courts while granting benefit under Section 389 of the 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. 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 8 CrlM No. 2078/2022 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 v. Narendra and Others reported in (2002) 9 SCC 364 and Ramji Prasad v. Rattan Kumar Jaiswal and Another reported in (2002) 9 SCC 366, it was held by this Court that in cases involving conviction under Section 302 of the IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. In Vijay Kumar (supra), it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 of the 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 the case of Vasant Tukaram Pawar v. State of Maharashtra reported in (2005) 5 SCC 281 and Gomti v. Thakurdas and Others reported in (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 above said 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 take 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 of the CrPC and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach.
11. Ratio of the recent judgment of "OMPRAKASH SAHNI‟S Case" (Supra) make the legal proposition manifestly clear, that at the stage of section 389 Cr.pc regarding suspension of sentence, the appellate court should not reappreciate the evidence and try to pickup lacunas or loopholes in the prosecution case, however, if the appellate court can arrive at prima-facie satisfaction that conviction may not be sustainable and the convict ultimately has fair chances of acquittal, only then the substantive order of sentence should be suspended. The aforesaid judgment of Hon'ble Supreme Court of India in ―OMPRAKASH SAHNI'S Case‖ (Supra) has a binding effect upon all courts of the Country, therefore, the earlier judgments relied upon by Ld. Counsel for appellant/convict are distinguishable. Ratio decidendi of ―OMPRAKASH SAHNI'S Case‖ (Supra) squarely applies to the facts of the case in hand. It is apt to reiterate here, that from the record 9 CrlM No. 2078/2022 it is discernable, that appellant/convict in the case in hand, has been sentenced for life imprisonment and fine of ₹ 50000/- by the trial court for his being guilty for commission of offence of rape u/s 376 RPC upon a minor girl of 8 years of age. The Ld. Trial Court has relied upon the evidence of as many as 13 prosecution witnesses including the evidence of victim of the crime. None of the prosecution witnesses as well as the victim of the crime are hostile against appellant/convict. The prosecutrix (victim of the crime) belongs to a poor family of rural area and her cry for justice cannot be ignored, as by the crime committed by appellant/convict the prosecutrix has suffered physical agony and mental trauma which is incalculable. Offence of rape is grave in nature and is most hated crime against the society. Be it noted, that earlier bail application of appellant/convict has been rejected by this court vide order dated 17.03.2022. Without appreciating the prosecution evidence at this stage of deciding the application for suspension of sentence u/s 389 Cr.pc and grant of bail to appellant/convict, we are of the considered opinion that there is nothing apparent or gross on the face of the record of the case from which this court can arrive at a prima-facie satisfaction that the conviction against appellant/convict is not sustainable and ultimately the appellant/convict has fair chances of acquittal. The nominal rolls/custody certificate issued by Superintendent District Jail Amphalla Jammu depict that the appellant has served imprisonment of 11 years and 6 days till 03.02.2023.
12. In view of the aforesaid discussion, we feel our self persuaded to hold that the appellant/convict at this stage has miserably failed to carve out a strong case for suspension of sentence and his release on bail. The application for suspension of sentence and release of appellant/convict on bail therefore being misconceived under law is disallowed, rejected and dismissed. CrlM No. 2078/2022 stands disposed of. Having regard to the fact that appellant/convict is in jail for more than 11 years, we deem it appropriate to expedite the hearing of main appeal. Let the main appeal come for consideration on 22.08.2023.
(Mohan Lal) (Tashi Rabstan)
Jammu Judge Judge
01.08.2023
Vijay
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No