Jharkhand High Court
Sripat Marandi vs State Of Jharkhand on 10 December, 2012
Author: D.N. Patel
Bench: D. N. Patel
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 883 of 2012
1. Sripat Marandi @ Sri Pati Marandi
2. Stephen Marandi
3. Ishwar Hembram
4. Choto Murmu
5.Hopna Marandi
6. Moto Marandi @ Naresh Marandi
7. Chunda Marandi
8. Aaresh 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: Mr. Ravi Prakash, A.P.P.
06/Dated: December 10, 2012
Per D.N. Patel, J
1. Having heard counsel for the both the sides, this criminal appeal is admitted.
2. Records and proceedings of Sessions Case No. 172 of 2007 has already been called for by this Court in another Criminal Appeal No. 653 of 2012, which has been preferred by original accused no. 1, whereas the present appeal has been preferred by rest of the accused in the aforesaid Sessions Case.
3. The present appellants, who are original accused nos. 2 to 9, have been convicted in Sessions Case No. 172 of 2007 mainly for the offences punishable under Section 302 of the Indian Penal Code to be read with Sections 149 and 148 of the Indian Penal Code for life imprisonment and fine of Rs. 5000/ and in case of default of payment of fine, simple imprisonment for 1 year.
4. We have heard counsel for both the sides for suspension of sentence of the appellants under section 389 of the Code of Criminal Procedure. The records and proceedings of S.C. No. 172 of 2007 has already been called in Cr. Appeal (DB) No. 653 of 2012. The papers of Cr. A. (DB) 653 of 2012 is also, today, on record along with this Criminal Appeal.
5. We have perused the records and proceedings of Sessions Case 2 No. 172 of 2007 and looking to the evidences on record, there is a prima facie case against the appellantsaccused. As the criminal appeal is pending, we are not much analyzing the evidences of record but suffice it to say that the case of prosecution is based upon several eye witnesses who are P.W. 1, P.W. 2, P.W. 3, P.W. 4, P.W. 5 and P.W. 7. Looking to the depositions of these eye witnesses, they have clearly narrated the role played by the present appellantsaccused. Moreover, the depositions of these eye witnesses is getting enough corroboration by the depositions given by P.W. 6 who has given medical evidence and carried out post mortem of the deceased.
6. Counsel appearing for the appellants has argued out the case at much length and has pointed out that the so called eye witnesses P.W. 7 is not an eye witness at all. There are only four injuries upon the body of the deceased, thus, this is an exaggerated case of the eye witnesses because there are more than one places of incident and the eye witnesses are related witnesses to the deceased. Counsel appearing for the appellants submitted that the evidence given by P.W. 6 belies the evidences of all the eye witnesses. As criminal appeal is pending, we are not much going into the details of the evidences on record but suffice it to say that there is a charge under section 149 of I.P.C., there is no need that all must have participated in causing injury upon the body of the deceased. Once they are part and parcel of unlawful assembly and few of them have already caused injuries which has resulted into death of the deceased, it is sufficient to bring home the charge under section 302 read with section 149 of the I.P.C. for all of the members of the unlawful assembly. The contention raised by counsel for the appellants that there is a discrepancy between the ocular and medical evidence, we are not accepting this argument mainly for the reason that looking to the evidences on record and the injuries sustained by the deceased and looking to the narration of the whole incident, given by several eye witnesses, on the contrary, there is enough and adequate corroboration by the medical evidence to the depositions given by approximately half a dozen of eye witnesses In view of this prima facie evidence on record and having enough corroboration by the 3 other evidences on record and also looking to the gravity of offence, quantum of punishment and the manner in which the appellants are involved in the offence, we are not inclined to suspend the sentences awarded to the appellants. Moreover, in Cr. Appeal No. 653 of 2012, the appeal was admitted which was preferred by original accused no. 1 and his prayer for suspension of sentence was also rejected by this Court vide order dated 08.08.2012. we are not inclined to suspend the sentence awarded to the appellants by the trial court in Sessions Case no. 172 of 2007.
7. 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:
"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.
4 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)
8. 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)
9. 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 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 5 absence of allegation of misuse of liberty during the period the accusedrespondent 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)
10. It has been held by Hon'ble Apex Court in Khilari Vs. State of Uttar Pradesh and another reported in (2008) 11 SCC 180 in paragraph nos. 4, 6, 12 and 13 reads as under:
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
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 non application 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.
11. In view of the contention of the counsel for the appellants that there is discrepancy in ocular evidence and medical evidence, is not accepted by this Court at this stage specially when the case of the prosecution is based upon several eye witnesses.
12. Accordingly, the prayer for suspension of sentence of the appellants, is hereby rejected.
(D. N. Patel, J) (Prashant Kumar, J) Sharda/sunil/