Madhya Pradesh High Court
Raghuvar Singh @ Raghuveer Singh Kuswah vs State Of M.P. on 13 March, 2015
1 Raghuwar Singh alias Raghuveer Singh v. State of M.P.
Cr.A.572/2004
13.3.2015
Shri Prashant Sharma, Advocate with Shri Sarvesh
Sharma, Advocate for the appellant.
Shri Neelesh Tomar, Panel Lawyer for the respondent/
State.
Shri Arun Barua, Advocate for the complainant.
IA. No.2036/2015 filed for urgent hearing of IA
No.2388/2014 (repeat application u/S. 389, Cr.P.C.) is
considered and allowed for the reasons mentioned therein.
2. I.A.No.2388/2014 repeat application for suspension of jail
sentence of sole appellant filed under Section 389 of Cr.P.C., is
taken up.
3. The reply filed by the State to I.A. No. 2388/2014 objecting
to the prayer for suspension of sentence is also considered.
4. Learned counsel for the appellant relying upon the
decision of the Apex Court in the cases of Kamal v. State of
Haryana reported in (2006) 1 SCC (Cr.) 757, Fazal v. State of
Uttar Pradesh reported in (2012) 5 SCC 752 and Sunil Kumar
v. Vipin Kumar reported in (2014) 8 SCC 868 prays for
suspension of sentence of life imprisonment being suffered by
the sole appellant on account of the impugned judgment and
conviction dated 05.08.2004 in S.T. No. 268/2003 by First
Additional Judge to the court of Sessions Judge, Gwalior (M.P.)
5. Learned counsel for the appellant in support of the said
2 Raghuwar Singh alias Raghuveer Singh v. State of M.P.
Cr.A.572/2004
prayer raises the following grounds ;
1. The appellant has suffered more than 11 years
of rigorous imprisonment as against the life sentence
awarded.
2. The appellant has been wrongly convicted and
sentenced by incorrect appreciation of facts and
circumstances attending the case.
3. The appellant's past conduct has been
exemplary for not having misused the liberty of
temporary suspension of the sentence granted
earlier on ground of ill-health by orders dated
20.06.2008, 24.04.2009, 24.08.2009 and
20.03.2010.
4. Despite the present appeal being of 2004
vintage and despite directions of this Court for
expeditious hearing of this appeal and despite the
appellant having made all out efforts to get the
appeal heard, the same continues to be pending
with no hope of hearing taking place in the near
future, since the appeals of the year of 1998 are still
pending for consideration.
6. Pertinently, I.A. 2388/2014 is a repeat application for
suspension of sentence after rejection of similar applications by
order dated 03.02.2012 and 17.05.2013 which were dismissed
3 Raghuwar Singh alias Raghuveer Singh v. State of M.P.
Cr.A.572/2004
on merits.
7. This Court refrains from entering into the merits of the
allegations found proved against the appellant in view of
rejection of earlier bail application for suspension of sentence
on merits.
8. The sole question before this Court is as to whether in the
attending circumstances as mentioned above, a life convict who
has suffered about 11-12 years of rigorous imprisonment can
successfully seek suspension of sentence merely on grounds of
having undergone substantial period of sentence and there
being no possibility of final hearing of the pending appeal.
9. Before answering the above said question, it would be
appropriate to consider the earlier verdicts of the Apex Court on
the said aspect which are enumerated below ;
In Kashmira Singh v. State of Punjab reported in
1977 (4) SCC 291, while contemplating upon the question
as to whether the earlier practice, of not suspending the
sentence of life convict for offence under Section 302 of
IPC, can be departed from or not the Apex Court in sum and
substance, held as under ;
1. No practice, howsoever, sanctified by
usage and hallowed by time can be allowed to
prevail if the same leads to injustice.
2. Every practice of the Court must find its
4 Raghuwar Singh alias Raghuveer Singh v. State of M.P.
Cr.A.572/2004
ultimate justification in the interest of justice.
3. Earlier practice of denial of suspension of
sentence to a life convict was based on the
assumption that the appeal in question shall be
disposed of within a reasonable period of time to
avoid prolonged post conviction custody.
4. The rationale of this practice can have no
application where the Court is unable to dispose
of appeals for five/six years.
5. Absence of any provision in the Cr.P.C. to
compensate a convict who is ultimately found to
be innocent.
6. Keeping the innocent convict under the
prolonged custody shakes the confidence of the
public in the administration of justice when the
convict is found innocent after prolonged post
conviction custody.
10. Therefore, the earlier practice of not suspending the
sentence can be relaxed when the courts are unable to hear the
appeal within reasonable period of time unless cogent grounds
to act otherwise are available.
11. The above said view of the Apex Court was followed in
Babu Singh V. State of U.P., reported in 1978 (1) SCC 579 and
Shailendra Kumar V. State of Delhi reported in (2000) 4 SCC
5 Raghuwar Singh alias Raghuveer Singh v. State of M.P.
Cr.A.572/2004
178.
12. The liberal and pro-convict view taken by the Apex Court
in the case of Kashmira Singh (supra) has crystallized into a
more balanced approach in the decisions of Bhagwan Rama
Shinde Gosai and Ors. v. State of Gujrat reported in (1999) 4
SCC 421, Akhilesh Kumar v. State of Bihar reported in
(2000) 6 SCC 461, Vijay Kumar v. Narendra reported in (2002)
9 SCC 364, Ramji Prasad v. Rattan Kumar Jaiswal reported
in (2002) 9 SCC 366, State of Haryana v. Hasmat reported in
(2004) 6 SCC 175, Kishori Lal v. Rupa reported in (2004) 7
SCC 638, State of Maharashtra v. Madhukar Wamanrao
Smarth reported in (2008) 5 SCC 721, Sidhartha Vashisht v.
State (NCT of Dehli) reported in (2008) 5 SCC 230, Angana v.
State of Rajasthan reported in (2009) 3 SCC 767, Sunil Kumar
v. Vipin Kumar reported in (2014) 8 SCC 868 in which following
were held to be some of the primary factors to be kept in mind
while considering prayer for suspension of sentence in
conviction involving grave offences.
1. Nature of accusation.
2. Manner of commission of crime.
3. Gravity of offence.
4. Desirability of release of convict on bail.
5. The convict did not misuse the liberty of
bail granted earlier by the trial/Appellate Court.
6 Raghuwar Singh alias Raghuveer Singh v. State of M.P.
Cr.A.572/2004
6. The power of suspension of sentence of
offence like murder should be sparingly
exercised in exceptional cases.
7. The order of suspension of sentence
ought to contain reasons in writing reflecting the
consideration of these relevant aspect.
8. The suspension of sentence in serious
offences like murder ought not to be granted
merely on the ground that an accused was on
bail during trial.
13. Apart from the above said relevant consideration
elucidated by the Apex Court, this Court is of the considered
view that the following considerations should also be taken into
account while deciding the question of suspension of sentence
of a convict suffering life sentence ;
1. The antecedent of convict, to find out
existence/non-existence of criminal proclivity.
2. Where the release of the convict would be
detrimental to the public interest.
14. The foundational factual matrix involved herein is that the
petitioner has suffered about 11 to 12 years of incarceration. The
appellant has not misused the liberty of temporary suspension of
sentence granted by this court on grounds of ill health. In this High
Court (Gwalior Bench) the criminal appeals of 1998-99 are yet to be
heard and therefore there does not appear any possibility of this
7 Raghuwar Singh alias Raghuveer Singh v. State of M.P.
Cr.A.572/2004
appeal coming up for final hearing in the near future. It is reflected
from the arrest memo dated 13.7. 2003 that the applicant does not
have criminal antecedents. The appellant is presently stated to be
about 54/55 years of age.
15. From the evidence found to be proved prima facie it appears
that the appellant has participated in the offence of murder of
deceased Hero by repeated assault with knife. Learned counsel for
the appellant has attempted to point out certain omissions,
contradictions and embellishment in the prosecution story but this
court refrains from considering the same since this court intends to
decide it on considerations other than merits.
16. Per contra, learned counsel for the State and the victim have
objected to the suspension of sentence by contending that similar
prayer has earlier been rejected on merits and there is no new
circumstance for making the said prayer again much less allowing the
same.
17. It is settled proposition of law that an appeal is a
continuation of trial and, therefore the conviction, which it
challenges, is though binding on the parties, but is not final and
remains subject to the appellate order, as and when passed.
18. Therefore while considering the application under Section
389, Cr.P.C. at the initial stage of the appeal, the merits of the
findings of the trial Court are seen though perfunctorily to
ascertain justifiability of release on bail. However, when
substantial part of the sentence is suffered with no foreseeable
8 Raghuwar Singh alias Raghuveer Singh v. State of M.P.
Cr.A.572/2004
hope of final hearing in the appeal in near future, the factor of
merit involving gravity of offence, nature of commission of
offence and quality of evidence on record, takes a backseat and
instead, the factors pertaining to the post conviction period,i.e.,
period of custody, post conviction behaviour, instances of
misuse of bail, age, possibility of hearing of the appeal in near
future and efforts made by the counsel for convict to get the
appeal heard, assume prominence and primacy.
19. When the claim for suspension of sentence raised by the
appellant is tested on the principles laid down by the Apex Court. it is
seen that 11 to 12 years of custody is suffered by the appellant who
has no criminal antecedents. However looking to the fact of nature of
offence and the active participation of the appellant in the said crime
release of appellant on bail by suspension of sentence may give rise
to an apprehension of unleashing of vendetta between the rival
parties. The existence of such apprehension cannot be denied, but
the emotion of revenge if at all present in all probabilities must have
diluted to a considerable extent due to passage of time. The offence
was committed some time in July, 2003 whereafter nearly 12 years
have goneby. The intensity of the feeling of animosity between the
rival parities must have lost its sting. Time is said to be a big healer.
Passage of about 12 long years not only mitigates the feeling of
animosity but also gives rise to saner and humane emotions of
forgive and forget. Elapse of such long period of time changes the
outlook of an individual towards a particular incident howsoever
9 Raghuwar Singh alias Raghuveer Singh v. State of M.P.
Cr.A.572/2004
painful it may be. This view has been upheld by the Apex Court in the
case of State of Punjab v. Ajaib Singh reported in (1995) 2 SCC
486, relevant extract of which is reproduced herein below:-
"6. Prior to adjudicating on the rival submissions, it
appears necessary to preface it with few observations
general in nature but vital according to us. Although
crime never dies nor there should be any sympathy for
the criminal, yet human factors play an important role
and reflect advertently or inadvertently in the decision-
making process. In this appeal there is a time-lag of
more than eighteen years from the date of the incident
and nearly fifteen years from the date of acquittal and its
hearing. By any standard it is shocking. And this has
been aggravated by still more shocking behaviour of the
Government which shall be adverted to later. Speedy
trial, early hearing and quick disposal are sine qua non of
criminal jurisprudence. In some countries like England
days are fixed statutorily for trial of cases. Keeping an
accused in custody for a day more than it is necessary is
constitutionally impermissible and violative of human
dignity, freedom of life and liberty. The overcrowded
court dockets, the phenomenal rise of public interest
litigation, duty to ensure enforcement of fundamental
rights undoubtedly keeps this Court under stress and
strain. But that cannot be an excuse for keeping the
sword of Damocles hanging on the accused for an
indefinite period of time. It does not do any credit rather
makes one sad. If the accused is not granted bail and
serves out the sentence then the appeal is rendered
academic for all practical purposes. And the right to
establish innocence fades away in lack of enthusiasm
and interest. If he is granted bail then long delay may
give rise to humane considerations. Time heals the
gravest scar and mitigates deepest injury suffered
physically, mentally and emotionally. Therefore, if the
courts have been rendered helpless and the
exasperating delay is threatening to eat away the system
10 Raghuwar Singh alias Raghuveer Singh v. State of M.P.
Cr.A.572/2004
then the Government may consider either to increase the
strength to clear the backlog or devise some mechanism
by which criminal appeals pending for more than
reasonable time in higher courts should stand disposed
of." (emphasized supplied)
20. An appeal of a life convict in custody pending since more
than 11 years with no hope of final hearing in the near future,
discloses a dismal scenario. If the State cannot provide final
hearing of appeals within reasonable time, then State is obliged
to create a suitable mechanism, by way of legislation or
executive fiat to remove this malady. Such positive step shall
repose confidence of the common man in the judicial system.
Judiciary is known to be the last resort of the people aggrieved
by action/inaction of the legislature and executive. People at
large look up to judiciary for justice rendered with promptitude.
"Justice delayed is justice denied" is a well known maxim. Even
if the appeal of a life convict in custody is allowed at a time when
substantial part of sentence is suffered, the justice rendered
gets defeated in actuality. The frustration faced by the acquitted,
gets accentuated by absence of any compensatory provision in
criminal law to indemnify against wrongful confinement and
prosecution.
21. Moreover our criminal jurisprudence does not exclude the
element of reformation by making it available even to persons
convicted of serious offences. The concept of reformatory criminal
11 Raghuwar Singh alias Raghuveer Singh v. State of M.P.
Cr.A.572/2004
jurisprudence derives strength from the benign and humane emotion
of forgive and forget and the ever present urge of human race to
improve itself by making amends and corrective steps to prevent re-
occurence of misdemeanor committed earlier.
22. Emphasizing the theory of reformation and rehabilitation in
criminal jurisprudence, Justice V.R. Krishna Iyer in the case of Mohd.
Giasuddin v. State of A.P. reported in (1977) 3 SCC 287, has
stressed upon the need for humanitarian grounds to be taken into
consideration while sentencing. The punishment inflicted on the
criminal should be therapeutic, rather than an 'in terrorem' in nature.
Following this view the Apex Court in the case of State of Gujarat v.
Hon'ble High Court of Gujarat reported in (1998) 7 SCC 392 has
observed thus:
28. This is the context to consider whether deterrence is
the main objective for punishment. Among the conflicting
theories for punishment, modern criminologists are
highlighting the reformative effect on the punished
criminal as the most germane aspect. Jereme Bentham
who propounded the theory of deterrence is now
considered as the apostle of a conservative old school of
thought. The retributive theory of punishment has waned
into a relic of primitivity because civilised society has
realised that retribution cannot solve the problem of
escalating criminal offences. Crime is now considered to
be a problem of social hygiene. That modern diagnosis
made by criminologists is now causing a sea change to
the whole approach towards crime and punishment. The
emphasis involved in punishment has now been
transposed from retribution to cure and reform so that the
original man, who was mentally healthy, can be recreated
from the ailing criminal.
12 Raghuwar Singh alias Raghuveer Singh v. State of M.P.
Cr.A.572/2004
---
31. The theory of reformation through punishment is grounded on the sublime philosophy that every man is born good but circumstances transform him into a criminal. The aphorism that "if every saint has a past every sinner has a future" is a tested philosophy concerning human life. V.R. Krishna Iyer, J. has taken pains to ornately fresco the reformative profile of the principles of sentencing in Mohd. Giasuddin v. State of A.P.7 The following passage deserves special mention in this context: (SCC pp. 289-90, para 7) "If the psychic perspective and the spiritual insight we have tried to project is valid, the police bully and the prison drill cannot 'minister to a mind diseased', nor tone down the tension, release the repression, unbend the perversion, each of which shows up as debased deviance, violent vice and behavioural turpitude. It is a truism, often forgotten in the hidden vendetta in human bosoms, that barbarity breeds barbarity, and injury recoils as injury, so that if healing the mentally or morally maimed or malformed man (found guilty) is the goal, awakening the inner being, more than torturing through exterior compulsions, holds out better curative hopes."
32. Reformation should hence be the dominant objective of a punishment and during incarceration, every effort should be made to recreate the good man out of a convicted prisoner. An assurance to him that his hard labour would eventually snowball into a handsome saving for his own rehabilitation would help him to get stripped of the moroseness and desperation in his mind while toiling with the rigours of hard labour during the period of his jail life. Thus, reformation and rehabilitation of a prisoner are of great public policy. Hence they serve a public purpose.
33. A reformative approach is now very much intertwined with a rehabilitative aspect to a convicted prisoner. It is 13 Raghuwar Singh alias Raghuveer Singh v. State of M.P. Cr.A.572/2004 hence a reasonable conclusion from the above discussion that a directive from the court under the authority of law to subject a convicted person (who was sentenced to rigorous imprisonment) to compulsory manual labour gets legal protection under the exemption provided in clause (2) of Article 23 of the Constitution because it serves a public purpose.
Similar view has been reiterated in the recent decision of Gopal Singh v. State of Uttrakhand reported in (2013) 7 SCC 545, while summarizing the principles for just and proper sentencing.
23. Viewed from a different angle, another reason for suspension of sentence takes shape. The well known maxim "actus curiae neminem gravabit" means that the act of the Court shall prejudice none. This maxim "is founded upon justice and good sense, and affords a safe and certain guide for the administration of the law" (per CRESSWELL J. in Freeman v. Tranah, 12 CB 406, p.415).
24. If this principle is applied to the facts of this case, it comes to light that the reason for delayed disposal of appeal is attributed to the systematical failure of inadequate Judges to deal with the huge backlog and flood of fresh filing. This failure ought not to visit anyone, including a convict in custody, with adverse consequences. True it is that certain fundamental rights of a convict suffer abridgement during custody, but one such fundamental right very much available, is the right to 14 Raghuwar Singh alias Raghuveer Singh v. State of M.P. Cr.A.572/2004 expeditious disposal of his appeal enshrined in Article 21 of the Constitution of India, which mandates right to speedy trial/appeal as a concomitant of right to life. Elucidating the maxim "actus curiae neminem gravabit" the Apex Court held thus:-
In Anil Rai v. State of Bihar reported in (2001) 7 SCC 318, para 3. any procedure or course of action which does not ensure a reasonable quick adjudication has been termed to be unjust. Such a course is contrary to the maxim 'actus curiae neminem gravabit' that an act of the Court shall prejudice none.
In Gaya Prasad v. Pradeep Shrivastava reported in (2001) 2 SCC 604, para 15 on the basis of the maxim, it was observed that the judicial tardiness for which our system has acquired notoriety, causes the lis to creep through the line for long, long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many-many events are bound to take place which might happen in relation to the parties as well as the subject matter of this lis. If the cause of action is to be submerged in such subsequent events on account of malady of the system it shatters the confidence of the litigant, despite the impairment already caused.
15 Raghuwar Singh alias Raghuveer Singh v. State of M.P. Cr.A.572/2004
25. In view of the above and looking to the past conduct of the petitioner where he has not misused the liberty of temporary suspension and the fact of the appellant having suffered substantial period of sentence ie. about 12 years with little possibility of this appeal being decided finally in the near future, this court is inclined to allow IA. 2388/2014.
26. It is pertinent to observe that the factor of prolonged post- conviction incarceration, bleak possibility of this appeal coming up for hearing in the near future and the appellant not having misused the liberty of temporary bail granted earlier and absence of criminal antecedents, outweigh the gravity of offence and the manner of commission of the offence.
27. This court is alive to the blemish and embarrassment that it may face, if the appellant is ultimately found to be innocent, especially in the absence of any mechanism in the Cr.P.C. for compensating a convict who is found innocent after having suffered substantial period of sentence.
28. Accordingly, I.A.No.2388/2014 is allowed.
29. It is directed that execution of remaining part of jail sentence of the appellant shall remain suspended till final decision of the present appeal on his executing bail bond in the sum of Rs. 1,00,000/- (One Lac Only) two solvent sureties in the like amount to the satisfaction of concerned CJM. Appellant is directed to appear before the Principal Registrar of this Court on 16 Raghuwar Singh alias Raghuveer Singh v. State of M.P. Cr.A.572/2004 06-04-2015 and on such other dates as may be fixed by the Registry for his appearance during pendency of the present appeal.
30. Record is available.
31. List for final hearing in due course.
(Sheel Nagu) (S.K. Palo)
Judge Judge
ar