IN THE HIGH COURT OF JHARKHAND AT RANCHI I.A. No. 1409 of 2014 with I.A. No. 175 of 2011 in Cr.Appeal (D.B.) No. 904 of 2008 1. Prabir Pradhan @ Pravir Pradhan 2. Amit Dubey Appellants I.A. No. 1079 of 2014 in Cr. Appeal No. 1009 of 2008 Ravi Singh @ Ravi...... Appellant Versus State of Jharkhand...... Respondent (In both cases) ------ CORAM: HON BLE MR. JUSTICE D.N. PATEL HON'BLE MR. JUSTICE P.P. BHATT ------ For the Appellants : M/s A.K. Das (In Cr.Appl No. 904 of 2008) M/s K. P. Choudhary (In Cr. Appl No. 1009 of 2008 For the Respondent : M/s 12/Dated 3 rd March, 2014 I.A. No. 1409 of 2014 I.A. No. 175 of 2011 I.A. No. 1079 of 2014 ----- 1. These interlocutory applications have been preferred by original accused no. 1 and 4 ( appellants in Cr. Appl (D.B.) No. 904 of 2008) and Original accused No. 2 (sole appellant in Cr. Appl (D.B.) No. 1009 of 2008 for suspension of sentence under section 389 of the Code of Criminal Procedure. These appellants and two others have been convicted vide order dated 19 th June, 2008 by 1st Additional Sessions Judge, Jamshedpur in S.T. No. 363 of 2006 and they were sentenced to undergo Rigorous Imprisonment for life and to pay a fine of Rs. 10,000/- for the offence punishable under Section 302/34 of the Indian Penal Code for committing murder of one Shri Nand Kishore @ Nandu @ Purnendu. 2. This court has received the record and proceedings of S.T. No. 363 of 2006. We have perused the record and proceedings of the said sessions trial and after hearing counsel for both sides, including counsel for the informant and looking to the evidences on record, it appears that there is prima-facie case against these appellants. As the criminal appeals
-2- are pending, we are not much inclined to analyse the evidences on record, but suffice it to say that there are several eye witnesses to the incident in question. They are P.W.1, P.W.2, P.W. 3 P.W.4 and P.W.7 and looking to their depositions, it appears that they have clearly narrated the role played by these appellants in the offence. Moreover, their depositions are getting enough corroboration from the medical evidence given by P.W. 5 Dr. J. Srinivas Rao. There are more than one bullet injury upon body of the deceased. Even looking to the depositions given by P.W.7 and P.W.9, few empty cartridges were also collected from the place of occurrence. From perusal of the depositions of the eye witnesses, it is apparent that they knew the accused persons and there is no question of mistaken identity whatsoever. Thus, looking to the deposition of the aforesaid witnesses, there is a prima-facie case against these appellants, namely Prabir Pradhan @ Pravir Pradhan and Amit Dubey (appellants in Cr.Appeal (D.B.) No. 904 of 2008) and Ravi Singh @ Ravi (appellant in Cr. Appeal No. 1009 of 2008). 3. Therefore, taking into consideration the gravity of offence, quantum of punishment and the manner in which the appellants are involved in the offence, as alleged by the prosecution, we are not inclined to suspend the sentence awarded by the trial court to the present appellant-accused. 4. Counsel for the appellants have argued out the case on the ground of parity for the reason that one of the accused persons, who is original accused no. 5 of S.T. Case No. 363 of 2006, namely Sanjay Singh, has filed Cr. Appeal (D.B.) No. 822 of 2008 and his prayer for suspension of sentence was allowed by this court vide order dated 1 st October, 2013. Counsel for the appellants has argued out at length on the ground of parity stating that the prayer for suspension of sentence of original accused no. 5, namely Sanjay Singh, was allowed on the ground that although the allegation of firing is against five persons, but only three gun shot injuries were found on the person of the deceased. This contention is not accepted by this court mainly for the reason that on perusal of the deposition of P.W. 1, P.W. 2, P.W.3, P.W. 4 and P.W.7, it appears that they have clearly stated that all the accused persons came together and opened fire upon the deceased. On perusal of paragraph no. 1 of the deposition of P.W.1, paragraph No. 1 and 2 of the deposition of P.W. 4 and paragraph No. 2 of the deposition of P.W. 7, it
-3- appears that these witnesses have clearly stated that all the five persons have opened fire at the deceased and apart from that few shots were also fired in the air by all of them. Therefore, from their deposition it appears that all the five persons fired at the deceased and it is only a matter of chance that the deceased sustained only three bullet injuries. Further, On perusal of evidences of other eye witnesses, it becomes apparent that appellant accused Praveer Pradhan has called the deceased and opened fire at him and thereafter, Biju (appellant of Criminal Appeal (D.B.) No. 211 of 2009) also fired at the deceased. Prayer for suspension of sentence made on behalf of Biju was rejected by this court on 16 th March, 2011. Moreover, looking to the narration of the whole incident by the eye witnesses, prima-facie, it appears that there was a common intention to kill the deceased. Moreover, the prayer for suspension of sentence of original accused no. 5 Sanjay Singh (Appellant in Cr. Appeal (D.B.) No. 822 of 2008 )was also rejected twice, i.e. on 20 th August, 2008 and thereafter, again on 6 th May, 2010, before it was allowed finally vide order dated 1 st October, 2013 in I.A. No. 817 of 2012 mainly on 'facts and circumstances of the case' and 'period of custody' among other grounds. On perusal of the evidences given by P.W.1, P.W. 2, P.W.3,P.W. 4 and P.W. 7, there is prima-facie case against these appellant accused that they came with fire arms and opened fire. Deceased sustained three bullet injuries as per medical evidence given by P.W. 5 Dr. Srinivas Rao. There were firing in the air also and therefore, contention of the counsel for the appellants regarding number of accused persons and number of bullet injuries is not accepted. Counsel for the appellants has also submitted that the S.T.D. Booth owner was not examined and only two empty cartridges were recovered from the place of occurrence. This contention is also not helpful to the appellants at this stage of suspension of sentence. 5. Moreover, prayer for suspension of sentence made on behalf of original accused no. 2 namely Ravi Singh (sole appellant in Cr. Appl. (D.B.) No. 1009 of 2008) has also been rejected twice, i.e. initially on 5 th March, 2009 and later on on 14 th October, 2009 in I.A. No. 1966 of 2009. Paragraph no. 4 and 5 of the order dated 14 th October, 2009 is quoted below: 4. As the criminal appeal is pending, we are not much analysing the evidences on record. Suffice it
-4- to say that looking to the depositions of P.W.1, P.W.2, P.W.3 and P.W.4, there is a prima facie case against the present applicant-accused. These witnesses are the eye witnesses of the incident. All the accused persons came together and opened firing and there are firearm injuries upon the deceased. The depositions of the eye witnesses are being corroborated by the deposition given by P.W. 5-Dr. J. Shrinivas Rao. The whole case is based upon the depositions of the eye witnesses. Immediate is the First Information Report and the present applicant-accused is also named in the First Information Report. 5. Looking to the evidences on record and also looking to the gravity of the offence, quantum of punishment and the manner in which the present applicant-accused in involved in the offence, as alleged by the prosecution, and also looking to the fact that on previous occasion also, the prayer for suspension of sentence was rejected by this Court, this time also, we are not inclined to suspend the sentence awarded by the trial court, to the present applicant. There is no change in circumstances after rejection of earlier prayers for suspension of sentence made on behalf of Ravi Singh @ Ravi (appellant in Cr. Appl (D.B.) No. 1009 of 2008). 6. So far as original accused No. 4 Amit Dubey (Appellant in Cr. Appeal (D.B.) No. 904 of 2008) is concerned, his prayer for suspension of sentence was rejected vide order dated 20 th August, 2009 in I.A. No. 1687 of 2009 in Criminal Appeal (D.B.) No. 904 of 2008 by a detailed speaking order. So far as this appellant is concerned this is the second time application for suspension of sentence under section 389 of the Cr.P.C. has been filed and there is no change in circumstances since the prayer for suspension of sentence has been rejected for the first time. So far as period of custody is concerned, it is submitted by counsel for the appellant that Amit Dubey (Appellant No. 2 in Cr.Appl. (D.B.) No. 904 of 2008 remained in judicial custody for the last seven years and six months, but, this contention is also not helpful at this stage of suspension of sentence.
-5-7. 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 non application 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) 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
6 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 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 period the accusedrespondent was granted parole. 8. The learned Sessions Judge, Gurgaon by a judgment dated 24 10 2001 had found the accused respondent guilty. Criminal Appeal No. 100 DB 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 accused respondent 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
7 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. However, Registry of this Court is directed to get the paper books prepared with neatly typed copy of depositions of prosecution witnesses and other evidences as required under Rule No. 190 and 191 of High Court of Jharkhand Rules 2001 within a period of three weeks from today. 11. There is no substance in these interlocutory applications, which are, accordingly, rejected. 12. The observations made herein above will only be for the purpose of suspension of sentence only. (D.N.Patel, J.) (P.P. Bhatt, J.) s.m.