Dilip Murmu vs State Of Jharkhand on 19 December, 2012

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Jharkhand High Court

Dilip Murmu vs State Of Jharkhand on 19 December, 2012

2. Gayna Marandi ...... Appellants Versus The State of Jharkhand ...... Respondent CORAM: HON'BLE MR. JUSTICE D.N. PATEL HON'BLE MR. JUSTICE PRASHANT KUMAR For the Appellants : Mr. Mahesh Tewari, Advocate For the Respondent : A.P.P. th 08/Dated: 19 December, 2012 Per D.N. Patel, J.:

1. Present appeal has already been admitted by this Court vide order dated 7th November, 2012. Records and Proceedings of Sessions Case No. 03 of 2008 was called for from the trial court so as to appreciate the argument for suspension of sentence.

2. Records and proceedings of Sessions Case No. 03 of 2008 has been received by this Court.

3. We have heard learned counsel for both the sides and perused the records and proceedings of Sessions Case No. 03 of 2008. Looking to the evidences on record, it appears that there is, prima facie, case against the present appellants accused. As the criminal appeal is pending, we are not much analyzing the evidences on record, but, suffice it to say that:

(i) The incident has taken place on 25th April, 2007. F.I.R. was lodged immediately by P.W.7, who is an informant and son of the deceased. The names of nine accused were also given in the F.I.R. and investigation was started. During the course of investigation, statements of several eye witnesses have been recorded, who have also given names of these two appellants.

(ii) Previously, chargesheet was filed against nine accused persons and supplementary chargesheet was filed against present two appellants and, therefore, case of nine accused persons was tried as Sessions Case No. 172 of 2007, whereas, case of present two appellants was tried as Sessions Case No. 03 of 2008.

(iii) Looking to the evidences on record, it appears that there are several eye witnesses of the incident. Looking to the depositions of the prosecution witnesses i.e. P.W.1 to P.W.9, it appears that there is, prima facie, case against these two appellants accused. The prosecution 2 witnesses have clearly narrated the role played by these two appellants.

Moreover, the depositions of these eye witnesses are getting enough corroboration to the medical evidence, given by P.W. 10 (Dr. Hiranmay Ghosh) as well as P.W.11, who is the Investigating Officer of the case.

(iv) The prayer for suspension of sentence of eight accused persons, who have also participated in causing murder of the deceased, namely, Sudhan Marandi, has been rejected by this Court vide order dated 10th December, 2012 in Cr. Appeal (DB) No. 883 of 2012.

(v) Learned counsel for the appellants has argued out the case, at much length and has taken every possible contentions. We are not in agreement with all the contentions, raised by learned counsel for the appellants. As the criminal appeal is pending, we are not dealing with each and every arguments. It has been contended by learned counsel for the appellants that the eye witnesses are, in fact, not eye witnesses. Similarly, it is submitted that there is discrepancy between ocular evidence and medical evidence and these two appellants were not named in the F.I.R. nor some of the witnesses have given the names of these two appellants before the police and learned counsel for the appellants has also relied upon the decision reported in 2010 (2) Eastern Criminal Cases 6 (SC). None of these arguments is useful to the appellants for suspension of sentence, because there are several eye witnesses, who have given the names of these two appellants before the police. Moreover, argument of discrepancy between ocular evidence and medical evidence is also not acceptable mainly for the reason that looking to the evidences on record, it appears that the prosecution witnesses have clearly narrated the role played by these two appellants along with other coaccused and at the stage of suspension of sentence, we are not much analyzing that how the medical evidence is corroborative to the depositions of the eye witnesses. The judgment, which is cited by learned counsel for the appellants, is also not helpful to the appellants because it propounds principle as to analysis of depositions of interested witnesses by the Court at the time of final hearing. The final hearing of this criminal appeal as well as Cr. Appeal (DB) No. 883 of 2012 is pending before this Court.

(vi) It has been held by the Hon'ble Supreme Court in the case of Khilari v. State of U.P. and another reported in AIR 2008 S.C. 1882 especially in paragraph 10, which reads as under:

3 "10. In Anwari Begum v. Sher Mohammad and Anr. [2005 (7) S.C.C. 326] it was, inter alia, observed as follows:

"7. Even on a cursory perusal the High Court's order shows complete nonapplication 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 orders 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 not as a mater of course.

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

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

2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

3. 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 v. Sudarshan Singh and Ors. {(2002) 3 S.C.C. 598}; Puran etc. v. Rambilas and Anr. etc. {(2001)6 SCC 338)} and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav & Anr. [JT 2004 (3) SC 442]."

(Emphasis supplied)

(vii) It has been held by the Hon'ble Supreme Court in the case of Ramji Prasad v. Rattan Kumar Jaiswal and Anr., as reported in (2002) 9 SCC 366, in paragraph no. 3, as under:

"3. 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 under Section 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)

(viii) It has been held by the Hon'ble Supreme Court in the case of State of Haryana v. Hasmat, as reported in (2004) 6 SCC 175, in paragraph nos. 6 to 9, as under:

"6. 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 4 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.

7. The appellate court is dutybound 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 period the accused respondent was granted parole.

8. The learned Sessions Judge, Gurgaon by a judgment dated 24102001 had found the accused respondent guilty. Criminal Appeal No. 100DB 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 accusedrespondent was 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.

9. In Vijay Kumar v. Narendra and Ramji Prasad v. Rattan Kumar Jaiswal it was held by this Court that in cases involving conviction under Section 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 under Section 302 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. These aspects have not been considered by the High Court, which passing the impugned order."

(Emphasis supplied)

(ix) It has been held by Hon'ble Apex Court in the case of Khilari Vs. State of Uttar Pradesh and another reported in (2008) 11 SCC 180 in paragraph nos. 4, 6, 12 and 13, which read as under:

5 "

4. The only stand taken was that the antemortem injuries on the body of the deceased included three contusions, one abraded contusion and four lacerated wounds of different dimensions on various parts of the body which could not have been caused by iron rods. It was their stand that some unknown assailants caused the injuries to the deceased.

6. After noticing the rival stands the High Court by the impugned order granted the bail with the following conclusions:

12. The extracted portion and the High Court's order goes to show there was complete nonapplication of mind and nonconsideration of the relevant aspects.

13. The impugned order, therefore, is not sustainable and it dismissed. The bail granted to Respondent 2 is cancelled. The matter is remitted to the High Court for fresh consideration in accordance with law."

4. In view of the aforesaid facts and looking to the evidences on record as well as looking to the gravity of offence, quantum of punishment and the manner in which the present appellants are involved in the offence, as alleged by the prosecution, we are not inclined to suspend the sentence awarded to them by the trial Court and, hence, their prayer for suspension of sentence is, hereby, rejected.

(D.N. Patel, J.) (Prashant Kumar, J.) Ajay/

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Jharkhand High Court