Andhra Pradesh High Court - Amravati

Tirumanuyam Srinivasulu Reddy ... vs State Of Ap., on 29 November, 2021

Bench: C.Praveen Kumar, Ravi Nath Tilhari

     THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
                               AND
     THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

                     I.A.No.09 of 2021
                             in
               Criminal Appeal No.474 of 2018

ORDER: (Per Hon‟ble Sri Justice C. Praveen Kumar)

      Heard      learned     Counsel      appearing   for   the

Appellant/Accused No.1 and Additional Public Prosecutor for

the State.


2.    Accused No.1 filed the present application, seeking bail

pending disposal of the Criminal Appeal No.474 of 2018.


3.    The admitted facts, of the case of the Prosecution, are

as under:

      i) P.Ws.1 and 6 are the parents of the deceased while

P.W.2 is the elder sister of P.W.1. Accused No.1 who is a

resident of Papanaidupeta, is a close relative of P.W.1.    A1

and P.W.6 worked in Dubai for sometime during which

period, A1 fell due a sum of Rs.3,00,000/- to P.W.6.

Thereafter, P.W.6 returned to India, constructed a house in

Tiruchanur and started living there.          The deceased was

studying U.K.G. at Vaishnavi Vidyala School, Tiruchanur and

every day she used to attend school at 8.30 A.M., by

travelling in a School van.        P.W.1 used to pick up the

deceased from the school van which used to a stop at the

tailoring shop of P.W.3.
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                                                I.A.No.09 of 2021 in
                                               Crl.A.No.474 of 2018


     ii) It is said that, P.W.6 used to contact A1, requesting

him to clear the dues, but there was no repayment of the

amount.   A1 also returned to India and started residing at

Papanaidupeta village along with his family members. There

was a quarrel, when P.W.1 and P.W.6 attended the birth day

function of the youngest son of A1 at Papanaidupeta village.

In the course of said quarrel, A1 is said to have threatened

P.Ws.1 and 6 with dire consequences. P.Ws.7 and 8 attended

the function and alleged to have pacified the matter and in

the process, humiliated A1 in the presence of his relatives.

Keeping the said incident in mind, A1 hatched a plan and

accordingly kidnapped the deceased when she alighted from

the school bus at tailoring shop of P.W.3, on a motor cycle

bearing registration No.AP 03 BA 6452 belonging to A2. The

deceased was taken to Vikruthamala tank of Yerpedu Mandal

around 6.00 PM where she was killed by drowning her in the

water tank. Thereafter, A1 is said to have dug a pit near the

tank with a spade and buried the dead body in the pit with

the help of A2.

     iii) The law was set into motion by lodging a report by

P.W.1 on 22.12.2014 at 5.00 P.M., wherein it was clearly

mentioned that A1 kidnapped her daughter and a case was

registered for the offence under Section 364 of I.P.C and

thereafter altered the Section of law to 302, 201 r/w.34 of
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                                                             CPK, J & RNT, J
                                                         I.A.No.09 of 2021 in
                                                        Crl.A.No.474 of 2018


I.P.C. After completing the investigation, a Charge Sheet

came to be filed.


4.   In support of its case, the prosecution examined P.Ws.1

to 18 and got marked Exs.P1 to Ex.P20 and M.Os.1 to 10.

Though, no oral evidence was adduced on behalf of the

defence, but the accused got marked Ex.D1-letter given by

P.W.6 to A1. Taking into consideration, the entire evidence

and the material available on record, the trial Court convicted

the petitioner/accused under Sections 364, 302, 201 r/w.34

of IPC and sentenced him under various counts including the

imprisonment for life for the offence punishable under

Section 302 of IPC. Apart from that, the Court directed the

petitioner/A1 to pay a sum of Rs.3,00,000/- to P.W.1 under

Section 357 of Cr.P.C. Challenging the same, the present

appeal came to be filed.


5.   Pending        disposal   of       the   appeal,   the      present

Interlocutory Application came to be filed, seeking bail on the

ground that though there is reference to a vehicle number in

the F.I.R., but the ownership of the bike could not be

established, and as such, it is difficult to believe that A1 has

used the vehicle in the commission of the offence. Learned

counsel for the petitioner also submits that there are number

of contradictions in the evidence of P.Ws.1 to 5 which throw

any amount of doubt on the prosecution case.                He further
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                                                             CPK, J & RNT, J
                                                         I.A.No.09 of 2021 in
                                                        Crl.A.No.474 of 2018


submits that no reliance can be placed on Test Identification

parade as the accused was shown, on T.V. five or six days

after the incident.

6.    The same is opposed by learned Additional Public

Prosecutor contending that the evidence available on record

amply establish the involvement of the accused in the

commission of the offence. Before proceeding further, it is to

be noted that on 12.02.2018 the High Court of Judicature for

the State of Telangana and the State of Andhra Pradesh while

admitting the appeal, dismissed the bail application.                     It

would be appropriate to extract the same, which is as under:

                              I.A.No.1 of 2018
         "Having regard to the facts in issue and as the appellants
     are convicted for an offence punishable under Section 302 of IPC
     and sentenced to suffer „imprisonment for life‟, and as no
     special reasons or a case is made out, we are not inclined to
     grant bail to the appellants.
         Accordingly, this petition is dismissed".



7.    From a reading of the above, it is very clear that the

Court after going through the material found that there are no

special reasons or a case is made out, warranting release of

the petitioner on bail.


8.    The hearing of a bail application pending disposal of the

appeal amounts to hearing of the appeal itself and the

practice of hearing a bail application was commented upon by

the Hon'ble Supreme Court in Kashmira Singh v. The State
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                                                                         CPK, J & RNT, J
                                                                     I.A.No.09 of 2021 in
                                                                    Crl.A.No.474 of 2018


of Punjab1 case and also in Preet Pal Singh v. State of

Uttar Pradesh and Another2.


9.      In Preet Pal Singh's case, [cited 2nd supra], the

Hon'ble Supreme Court in paragraph no. 24 framed an issue

as to whether "the High Court was justified in directing release

of the Respondent No.2 on bail, during the pendency of his

appeal before the High Court". In paragraph no. 26 of the said

judgment, the court held as under:

"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 Anr3. However, in case of post conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of

(1977) 4 SCC 291

(2020) 7 Supreme Court Cases 645

(2018) 3 SCC 22

CPK, J & RNT, J I.A.No.09 of 2021 in Crl.A.No.474 of 2018

presumption of innocence does not arise. Nor is the principle 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.

40. It is difficult to appreciate how the High Court could casually have suspended the execution of the sentence and granted bail to the Respondent No.2 without recording any reasons, with the casual observation of force in the argument made on behalf of the Appellant before the High Court, that is, the Respondent No.2 herein. In effect, at the stage of an application under Section 389 of the CrPC, the High Court found merit in the submission that the brother of the victim not having been examined, the contention of the Respondent No.2, being the Appellant before the High Court, that the amount of Rs.2,50,000/- was taken as a loan was not refuted, ignoring the evidence relied upon by the Sessions Court, including the oral evidence of the victim‟s parents."

CPK, J & RNT, J I.A.No.09 of 2021 in Crl.A.No.474 of 2018

12. A reading of the evidence of P.W.5, would show that on

22.12.2014 at 4.30 PM, she alighted at the bus stop which

was near the tailoring shop of P.W.3 and when the bus

stopped, two boys alighted first and thereafter the deceased

got down. At that time, A1 came there, caughthold of the

deceased and took her towards a bike. Meanwhile, some

other person came there on a bike. It is said that A1 holding

the hand of the deceased, sat as a pillion rider and kept the

deceased in between the rider and the pillion rider of the

motor cycle. Thereafter, the school van moved from the place.

Sometime later, her Head Master telephoned P.W.5 and

enquired whether she got alighted the deceased. On the next

day, P.W.5 came to know that the deceased was murdered.

P.W.5 identified A1 in the test identification parade conducted

by the Magistrate.

13. This evidence of P.W.5 also gets corroboration from the

evidence of P.W.4, who also saw A1 taking the deceased along

with him stating that he would take the deceased to the

house of her senior maternal aunt. Though, these two

witnesses were cross-examined, prima-facie, we do not find

any material discrepancy to disbelieve their evidence at this

stage.