Jharkhand High Court
Kamakhya Narayan Giri vs The State Of Jharkhand on 19 December, 2012
Author: D.N. Patel
Bench: D.N. Patel
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1007 of 2012
1.Kamakhya Narayan Giri alias Kamakhya Giri
2. Murli Giri
3. Om Prakash Giri
4. Mahendra Giri
5. Arun Giri ...... 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. Anil Kr. Jha, Advocate For the Respondent : Mr. Shekhar Sinha, A.P.P. th 05/Dated: 19 December, 2012 Per D.N. Patel, J.:
1. Present appeal has already been admitted by this Court vide order dated 8th November, 2012. Records and Proceedings of Sessions Trial No. 200 of 1998 was called for from the trial court so as to appreciate the argument for suspension of sentence.
2. Records and proceedings of Sessions Trial No. 200 of 1998 has been received by this Court.
3. We have heard learned counsel for both the sides and looking to the evidences of record, it appears that there is, prima facie, case against the present appellantsaccused. As the criminal appeal is pending, we are not much analyzing the evidences on record, but, suffice it to say that:
(i) The case of the prosecution is based upon several eye witnesses, who are P.W.1, P.W.2 and P.W.5. P.W.5 is an informant and brother of the deceased. Incident has taken place on 22nd August, 1996 at about 07:00 a.m. and on the say day, F.I.R. was lodged.
(ii) Looking the evidences of the eye witnesses, it appears that they have clearly narrated the role played by the appellantsaccuses for causing murder of the deceased. Moreover, the depositions of the eye witnesses are getting enough corroboration by P.W.7, who is Dr. Rajendra Prasad Singh. Thus, evidences of the eye witnesses constitute prima facie case against the present appellantsaccused.
(iii) It is submitted by learned counsel for the appellants that the eye witnesses are relatives and though P.W.5 has narrated that he is injured eyewitness, injury certificate is not proved and the appellants have also 2 sustained injuries. These contentions are not accepted by this Court, for suspension of sentence at this stage, mainly for the reason that the relatives, if are the eye witnesses, their depositions cannot be brushed aside only on this ground. Their depositions should be viewed with all circumspection. So far as injuries sustained by the appellants are concerned, it appears that another sessions trial case is going on in the trial court.
(iv) At this stage, learned counsel for the appellants is insisting that one more contention may be recorded that there are only three injuries, whereas, five are the accused. This matching, at this stage, is also not helpful to the appellants because there is already charge under Section 149 of the Indian Penal Code and they have also been punished for the offence under Section 302 to be read with Section 149 of the Indian Penal Code.
4. 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.
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.
3 {(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)
5. 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)
6. 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 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 4 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)
7. In view of the aforesaid evidences and prima facie case against the appellants and looking to the gravity of offence, quantum of punishment and the manner in which the present appellants are involved in the offences, 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/