B.Shiva Kumar, Hyderabad Anr., vs The State Of Ap., Rep Pp.,
2021 Latest Caselaw 3112 AP

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      THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
                                      AND
      THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN

                             I.A. No. 1 of 2021

                                        In

                   Criminal Appeal No. 912 of 2016

Order:   (Per Hon'ble Sri Justice C.Praveen Kumar)



     Heard Sri. A. Prabhakar Rao, learned Counsel appearing

for the Petitioners and Sri. S.Dushyanth Reddy, Additional

Public Prosecutor for the State, through Blue Jeans video

conferencing APP and with their consent, the present application

is disposed of.


1)   A1 and A2 filed the present application seeking release on

bail pending disposal of Criminal Appeal No.912 of 2016.

However, the counsel for the petitioners submits that he is not

pressing the bail application filed on behalf of A1.


2)   The petitioner along with six others were tried in Sessions

Case No.229 of 2011 on the file of Family Court-cum-IX

Additional     District     and     Sessions         Judge,   East   Godavari,

Rajamahendravaram, for the offence punishable under Sections

148, 302, 201, 365, 120B, 379, 109 r/w 149 IPC.                         By its

Judgment dated 19.08.2016, the learned Sessions Judge,

convicted the petitioner and others for the offences punishable

under Sections 302, 120B, 364, 201 and 411 IPC and sentenced

A1 and the petitioner [A2] to undergo imprisonment for life and
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to pay a fine of Rs.5,000/- in default to suffer simple

imprisonment for a period of six months for the offence

punishable under Section 302 IPC.                    The petitioner, A1 and

others were also convicted for the offences punishable under

Sections 411, 201, 364 and 120B IPC.                         Aggrieved by the

conviction and sentence, the accused preferred the present

application.


3)   At the time of admission of the appeal, which was on

19.09.2016, this Court while admitting the appeal, dismissed

the bail application filed by the petitioner holding as under:


         "We see no special circumstances warranting suspension
         of    the   judgment   under       appeal   or   release   of   the
         petitioners/appellants-A1      &     A2     on   bail   given   the
         seriousness of the charge which was held proved against
         them and the sentence which was imposed upon them.

         The miscellaneous petition is accordingly dismissed."


4)    Thereafter, A1 filed another bail application vide Criminal

M.P.No.664 of 2017, which was dismissed on 28.03.2017.

Thereafter, A1 filed another application I.A.No.3 of 2018 which

came to be rejected on the ground that there are no changed

circumstances. However, the Court directed the Registry to list

the appeal for final hearing after Summer Vacation.


5)   From the above, it is clear that A1 filed bail applications on

number of occasions seeking release on bail on the ground that

there is no evidence against him, but the same came to be

rejected on the ground that there are no changed circumstances.
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It appears that the orders passed by this Court rejecting the bail

applications of A1 have become final as they are not challenged

before the higher court.


6)       Insofar as A2 is concerned, as observed by earlier, his

application for bail was rejected on 19.09.2016 on the ground of

seriousness in the charge which was proved against him. In the

absence      of   any   changed   circumstances,   the   question   of

reconsidering the application of the petitioner for bail would not

arise.


7)       The learned counsel for the petitioner tried to contend that

there no eye witnesses to the incident and the case rests on

circumstantial evidence. According to him, PW4, PW5 and PW6

were examined to prove the kidnap of the deceased (a practising

lawyer) did not support the prosecution and they were treated

hostile by the prosecution. He also submits that the evidence of

PW9, PW10 and PW11 who are the employees in the hotel does

not in any way establish the culpability of the accused in the

crime.


8)       The same is opposed by the learned Public Prosecutor

contending that having regard to the nature of the evidence

adduced by the prosecution, it is not a fit case for grant of bail,

on merits, five years after filing of this criminal appeal, moreso,

when there is a direction for listing of this appeal for final

hearing.
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9)         Before dealing with the case on hand, it would be

appropriate to refer to the Judgment of the Hon'ble Apex Court

in Preet Pal Singh v. State of Uttar Pradesh and Another1

wherein, the Hon'ble Supreme Court in paragraph no. 24 while

answering the issue as to whether "the High Court was justified

in directing release of the Respondent No.2 on bail, during the

pendency of appeal before the High Court", held as under in

paragraph no. 26:

"As the discretion under Section 389(1) is to be exercised judicially, the Appellate Court is obliged to consider whether any cogent ground has been disclosed, giving rise to substantial doubts about the validity of the conviction and whether there is likelihood of unreasonable delay in disposal of the appeal, as held by this Court in Kashmira Singh v. State of Punjab and Babu Singh and Ors. v. State of U.P."

10) In paragraph 35, the Hon'ble Supreme Court held as

under:

"There is a difference between grant of bail under Section 439 of the CrPC in case of pre-trial arrest and suspension of sentence under Section 389 of the CrPC and grant of bail, post conviction. In the earlier case there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. and Anr2. However, in case of post conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle

(2020) 7 Supreme Court Cases 645

(2018) 3 SCC 22

of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) of the Cr.P.C."

11) Similarly, in paragraph no. 38 and 40, the Hon'ble

Supreme Court held as under:

"38. In considering an application for suspension of sentence, the Appellate Court is only to examine if there is such patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous. Where there is evidence that has been considered by the Trial Court, it is not open to a Court considering application under Section 389 to re-assess and/or re-analyze the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail.

12) The case of the prosecution is that A1 fell in love with one

Bukka Roopa Surya Sri @ Divya and married her against the

consent of her father (A7). They were blessed with a child. But,

however, disputes arose between the spouses, which led to

Bukka Roopa Surya Sri leaving her husband and going to

Rajahmundry to live in her maternal grandmother's house.

13) The deceased, who was an Advocate, was approached by

Bukka Roopa Surya Sri to deal with her matrimonial cases. It is

said that, A1 developed a grouse against the said Advocate as he

apprehends that he is responsible for the disputes in his family

and as such developed grouse against the deceased. A1

developed an intention to eliminate the deceased from his path

and, accordingly, he took the help of other accused to execute

his crime. Accordingly, all the accused came to Rajahmundry

about 15 days prior to 22.02.2010 and stayed in a lodge to

watch the movements of the deceased.

14) On 22.02.2010 night, when the deceased was going

towards Prakash Nagar Park side on his motorcycle, the accused

intercepted the motorcycle of the deceased with their TATA

Indica Car belonging to A3 and abducted the deceased in the

said car. A5 and A6 followed them on their motorcycle. It is

said that, while they were proceeding in a car, the accused

sedated the deceased with chloroform. Later, A1 beat the

deceased with an iron rod on the head. When the deceased was

struggling for life, A1 put a belt around the neck as a noose and

strangulated him till death. Thereafter, the body was thrown in

valley at Maredumilli Forest and escaped. A7 who is the father of

A1, spent money for killing the deceased. This, in substance, is

the case of the prosecution.

15) In order to prove the same, the prosecution examined PW1

to PW28 and got marked Ex.P1 to Ex.P46, beside marking MO1

to MO18. The defence also got marked Exs.D1 to D17.

16) It is not doubt true that, it is case arising out of the

circumstantial evidence. But, the learned Sessions Judge has

segregated the case into six (VI) stages, which are referred to in

paragraph 14 of the trial Court judgment. It may not be

necessary to refer to the different stages enumerated therein.

But, suffice to say that stage (IV) and stage (V) relate to

conspiracy hatched by A1 to A6 with the support of A7 and the

execution of common intention in eliminating the deceased by

kidnapping him. The relevant witnesses, who spoke about other

acts were referred to in paragraph 14 of the Judgment.

17) The fact that all the accused conspired and that A2, A6, A3

and A1 have come to Rajahmundry and stayed at hotel where

they conspired to eliminate the deceased with active support of

A7 is established through the evidence of PW9, PW10, PW11 and

PW15.

18) PW9 is a clerk in Uma Sankar Lodge where he worked for

10 years from 1991. He in his evidence deposed as under:

"On 09.02.2010 at 08.00 P.M. one person came to their lodge seeking for a room. The person informed him that on 18.2.2010 some of his friends are coming and requested to allot rooms. He allotted Room No.109 and Room No.110. Apart from that singe person five more persons have come, they stayed on 18.2.2010 and they left on 19.2.2010 in the afternoon."

19) PW10, worked in Chandralok lodge for a period of 11 years

as Waiter. According to him, on 19.02.2010 six persons came to

the lodge seeking accommodation and he showed the rooms.

They stayed in the rooms for four or five days. In the Test

Identification Parade conducted, he identified A1 and A2 as the

persons who stated in the hotel.

20) PW15, who was working as Receptionist in the Chandralok

lodge, deposed in his evidence as under:

"On 19.02.2010 two persons came to lodge, they asked for rooms and selected room No.105 and 205. They paid Rs.1,000/- towards advance. He made entries in the books. The persons entered their particulars in the register. Thereafter six persons in total have occupied the rooms. They vacated the rooms on 22.2.2010 at around 3- 30 P.M. Previously 07.02.2010 some persons out of six persons stayed in his lodge for two days and left. Police have examined him on 5.3.2010, recorded his statement. He appeared to the test identification parade. He identified Accused No.1 and Accused No.6. Through him Ex.P12 name and address filled by Accused No.1 at page No.62 and Serial No.8 in the register was marked."

21) From the evidence of these witnesses, prima facie, it stands

established that they came and stayed in the hotel for two days

and then they left the hotel. In the Test Identification some of

the accused were identified.

22) Coming to the act of abduction, the case of the prosecution

is that A1 to A7 are responsible for abducting the deceased and,

thereafter, caused his death. The evidence on record show that

in order to escape from the accused, when they were chasing, the

accused entered the house of PW4 and PW5 who claimed to have

shouted as to why he is coming inside the house. At that point of

time A2 to A4 caught hold of the deceased and forcibly took him

while the deceased was crying for help. PW4 claims to have

enquired the reason for taking away the deceased to which the

accused replied that the deceased dashed against a boy on the

way with his motorcycle and tried to escape.

23) Though, there are no eye witnesses to see the actual attack

on the deceased, but, the evidence of PW3, PW4 and PW5 could

be of some relevance to establish the theory of "last scene" of the

accused in the company of the deceased.

24) PW3, though, declared hostile but, she in her evidence-in-

chief deposed as under:

"On 22.2.2010 she came to hospital where she is working as a nurse, Ushodaya ENT Hospital, Rajahmundry. At 7- 00 P.M. she attended her duties. Around 9-30 PM she heard shouting of help, help, she came out of the gate and saw white Maruthi Car stationed between her hospital and Pragathi Hospital, one person was forcibly taken inside the car by holding his hands by three persons. One person came on bike and hold her hand and stated that the caught hold person dashed a child and came in speedily, they caught for the purpose of taking him to Prakash Nagar PS. On that she advised to call police or she would inform. Meanwhile, the person, who was forcibly taken had shouted loudly that he did not dash any boy. She came to the car to help him, the persons forcibly dashed the caught hold person inside white Maruthi car and car was moved speedily. She deposed that she identified the person who caught hold her hand, again she stated that she cannot identify them."

25) In the cross-examination, the learned counsel for the

accused tried to elicit that she did not state about working in

ENT Hospital. Interestingly, the counsel for the accused elicited

information as to the number of persons present in the hospital,

which thereby show that she is working in hospital and was

present in the hospital, at that time. Therefore, she witnessing

the deceased being taken, prima facie, stands established.

26) Similar is the evidence of PW4 and PW5. It may not be

necessary for us to delve into the evidence to these witnesses in

detail, in an application for bail filed pending disposal of the

appeal in view of the Judgment of the Hon'ble Apex Court

referred to above.

27) Having regard to the fact that the application for bail of the

petitioner was rejected earlier by this Court and in view of the

evidence of the witnesses referred to above, which prima facie

establish the petitioner being "last seen" in the company of the

deceased; also the accused staying in a hotel for couple of days;

and identification of accused in test identification parade.

Therefore, at this stage, it cannot be said that the finding given

by the trial court showing the complexity of the accused in the

commission of the offence, though, not directly but otherwise is

perverse or that there was patent infirmity in the order of

conviction making the order prima facie erroneous. Only after

appreciation of the entire evidence on record, the court has come

to a right conclusion with regard to the involvement of the

accused in the crime and in the absence of any changed

circumstances, prima facie we are of the view that it is not a case

to grant bail at this stage.

28) Accordingly, the I.A. is dismissed. However, the Registry

to comply with the order passed earlier in listing the matter for

final hearing, if booklet is ready.

_______________________________ JUSTICE C. PRAVEEN KUMAR

_______________________________ JUSTICE B. KRISHNA MOHAN Date: 19/08/2021 S.M...

THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN

I.A. No. 1 of 2021

In

Criminal Appeal No. 912 of 2016 (Per Hon'ble Sri Justice C.Praveen Kumar)

Date: 19/08/2021

S.M.