Delhi High Court

Ravi Kumar @ Sonu vs State on 5 October, 2010

Author: Anil Kumar

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+               Crl.M.B No.553/2010 in Crl. Appeal No. 444/2010

%                               Date of Decision: 5.10.2010

Ravi Kumar @ Sonu                                        .... Appellant/Applicant

                           Through       Mr. S.P. Singh Choudhary and Mr. Y.R.
                                         Sharma, Advocates

                                               Versus

State                                                      .... Respondent
                        Through          Mr. Lovkesh Sawhney, APP


                                                And



+              Crl.M.B. No. 701/2010 in Crl. Appeal No. 595/2010

Ashwani Dubey @ Chhanwa                                  ....Appellant/Applicant

                           Through Mr. V.K. Shukla and Mr. A.K. Tripathi,
                                   Advocates

                                               Versus

State                                                     .... Respondent
                        Through          Mr. Lovkesh Sawhney, APP

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SURESH KAIT

1.      Whether reporters of Local papers may be                  YES
        allowed to see the judgment?
2.      To be referred to the reporter or not?                     NO
3.      Whether the judgment should be reported                    NO
        in the Digest?




Crl.M.B No.553/2010 in Crl.A.No. 444/2010                               Page 1 of 24
& Crl.M.B No.701/2010 in Crl..A No. 595/2010
 ANIL KUMAR, J.

1. The appellants/applicants in above noted appeals, namely, Sh.

Ravi Kumar and Sh. Ashwani Dubey were convicted for murdering the

deceased Sarvesh Kumar, a TSR/auto driver, having the common

intention with the ulterior motive of committing a robbery and

murdering him, by a common order dated 24th February, 2010 and

were convicted to undergo life imprisonment and a fine of Rs.5,000/-

each and in default to further undergo simple imprisonment for six

months.

2. The appellants/applicants Ravi Kumar and Ashwani Dubey have

sought suspension of their sentences and their release on bail by filing

respective applications in their appeals. The appellant Ravi Kumar has

filed Crl. Appeal No. 444/2010 in which the application being

Crl.M.B.No. 553/2010 has been filed under Section 389 of Crl.

Procedure Code whereas the appellant/applicant Sh. Ashwani Dubey

has filed Crl. Appeal No. 595/2010 in which Crl. M.B. No. 701/2010 is

filed by him under Section 389 of Crl. Procedure Code.

3. Both the applicants were charged with the allegation that on 28th

January, 2004 at 7:30 pm at Jharoda Road, near Sangam Vihar, Delhi,

they committed robbery by taking the TSR of Sarvesh Kumar and both

& Crl.M.B No.701/2010 in Crl..A No. 595/2010 committed murder of TSR driver Sarvesh Kumar by the use of knives in

furtherance of their common intention. According to the prosecution,

PW 4, constable Hari Shankar was posted at Police Station Welcome

Nagar on 29th January, 2004 and while on patrolling duty along with

PW10, ASI Ashiq Ali and PW8, constable Bhagat Singh, a secret

information was received that two boys had come to Kabari Market to

sell a three wheeler scooter. After reaching there, they saw Ashwani

Kumar sitting on the driver seat of TSR No. DLIRG-8733 whereas

accused Ravi was sitting on the rear seat of said TSR. On demand for

the papers of the scooter, they could not produce any paper and on

search, a challan bearing No. AG099387 issued in the name of Ram

Kishan was recovered along with a permit. A raxine bag bearing blood

stains was found lying near Ravi and blood stains were also found on

the back seat. The blood stains were detected on the pant of the

appellant Ashwani Dubey, which were taken into possession vide memo

Ex. PW4/C, and the blood stains were also found on the driver seat.

The blood stains and the cloths having blood stains were seized and the

three wheeler scooter was also seized vide Seizure Memo Ex. PW 4/A.

The initial Rukka in the case was lodged on the statement of constable

Sunil Kumar, PW-11, who had deposed that on 29th January, 2004, he

was posted at Police Post Jharoda, PS Timar Pur and while on patrolling

duty, along with SI Mahavir Singh, at about 10:15 am at Jharoda Pusta

opposite Sangam Vihar, Gali No. 3 they saw a dead body soaked with

& Crl.M.B No.701/2010 in Crl..A No. 595/2010 blood lying in the bushes near the side of the road. The body had two

thumbs in both hands and there were sharp edged injuries on neck and

fingers. The driving licence was recovered from the pant of the deceased

bearing the name of Sarvesh. Efforts were made to identify the dead

body. The driving licence, Ex.PX1 the visiting card, Ex.PX2 blood

stained earth, Ex.PX3 and earth control, Ex.PX4 were also lifted and

body was shifted to mortuary.

4. On 30th January, 2004, the legal heirs of the deceased identified

the dead body as of Sarvesh Kumar and the post mortem was

conducted on 30th January, 2004 at about 1.15 p.m. and it was opined

that the deceased had died about 40 hours ago and in the

circumstances, the time of death was stated to be about 8:00 p.m. on

28th January, 2004. On the basis of the statement of Azad Singh that

he had seen the deceased Sarvesh Kumar last time with the accused at

7:30 p.m. on 28th January,2004 and other materials, the appellants

were arrested and were charged of committing robbery on 28th January,

2004 at 7:30 pm by using deadly weapon, i.e., knives and committing

an offence under Section 392/397 of IPC and also committing murder

of Sarvesh Kumar, S/o Sunder Lal, A TSR driver and thus committing

an offence under Section 302/34 of IPC. The appellants/accused

pleaded not guilty and claimed trial. An extensive trial was conducted

where the prosecution examined 23 witnesses and the statements of the

& Crl.M.B No.701/2010 in Crl..A No. 595/2010 accused persons were recorded under Section-313 of the Criminal

Procedure Code and thereafter, by impugned orders they have been

convicted of offence of robbery and murder and have been awarded life

sentence and fine of Rs.5,000/- each and in default of which, to

undergo six months simple imprisonment.

5. Both the accused, in their respective applications for suspension

of sentence have primarily emphasised similar pleas and contentions

and their counsel have argued and raised similar pleas. The applicant

Ravi is alleged to be in custody since 2004 and it is contended that his

conviction and sentence is without any evidence and is based on

surmises and conjectures and he has been acquitted in this case under

Section 392/397 of IPC and in the circumstances, it is asserted that he

is entitled for suspension of sentence and for his release on bail. The

applicant/Ashwani Dubey has sought suspension of sentence on the

ground that there is every likelihood of his appeal being allowed and as

per the present roster, the appellant Sh. Ashwani Dubey, who is in jail

for the last six years, his appeal is not likely to be heard in the next ten

years and in the circumstances, he will suffer irreparable loss and the

prime time of his youth will be ruined due to confinement in jail. The

appellants also contended that they do not have any criminal history

and in case, they are released on bail, they shall not misuse liberty

granted to them after suspending their sentence.

& Crl.M.B No.701/2010 in Crl..A No. 595/2010

6. The learned counsel for the appellants/applicants Mr. S.P. Singh

Choudhary Advocate and Mr. V.K. Shukla Advocate have argued

elaborately on a number of days and have taken us through substantial

evidence and documents on record. They emphasised that the

statement of PW-9 Sh. Azad Singh is not reliable at all and that the

recoveries have also been manipulated pursuant to alleged disclosure

statement. Mr. Choudhary, learned counsel also contended that the

disclosure statement of Sh. Ravi Kumar does not bear any date

reflecting unequivocally that the disclosure statements and other

evidence against the applicants had been fabricated and manufactured

to implicate them. The learned counsel contended that PW-9 Sh. Azad

Singh, in his statement under Section 161 of Criminal Procedure Code

recorded on 29th January, 2004, had not named the

appellants/applicants. Referring to the statement of PW-9, it is

asserted that he came to know about the names of the accused persons

only while coming to the Court and also from the summons received by

him, where the name of the accused had been mentioned. Counsel for

both the accused greatly emphasised on the fact that PW-9 had deposed

that he had seen the scooter of Sarvesh at Police Station Welcome at

about 11.00 am whereas according to the version of the prosecution,

the scooter was seized in the evening of 29th January, 2004 at about

5:30 pm. Referring to the statement of PW-5, Rajender, also the plea

was augmented that if the scooter was outside the police station

& Crl.M.B No.701/2010 in Crl..A No. 595/2010 Welcome at 11:00 am, the same could not be recovered nor the accused

could be arrested at 5:30 pm or thereafter on the same date. According

to them this is reflective of the unreliable recoveries and in the

circumstances they cannot be convicted of the offenses alleged against

them.

7. According to them, the prosecution version that the accused had

tried to sell the three wheeler scooter at Kabari Market is also a cooked

up story. Their assertion is that there are major contradictions in

recording of the time and recording of statement of witnesses by the

prosecution. Non participation of accused in test identification parade

by the applicants has also been justified on the ground that the faces of

the accused were not muffled and their photographs were taken and

therefore, they were justified in not participating in the test

identification parade and no adverse inference can be taken against

them. Mr. V.K. Shukla Advocate learned counsel for the

applicant/Ashwani also emphasised that the prosecution has failed to

disclose the injury on the body of Ravi and placed reliance on Ex. PW-

23/G. According to him, if there were injuries on the body of the

accused, which have not been explained, then disclosure statement

could not be considered. According to him, the allegation of robbing the

scooter has not been accepted as the applicants have not been

convicted under Section 392/397 of IPC. It is contended that all these

& Crl.M.B No.701/2010 in Crl..A No. 595/2010 contradictions and points have not been considered by the Trial Court

and the plea of the prosecution has not been corroborated from the

statement of PW-10, ASI Aashiq Ali. Referring to contradictions, it is

contended that PW-23 Investigating Officer, Bir Singh has deposed that

he had recorded the statement of Azad Singh, PW9 on 29th January,

2004 at about 6:00 p.m. whereas Azad Singh, PW-9 has deposed that

his statement was recorded at 7:00 pm in the presence of SHO by some

other police official. Castigating the theory of recovery of scooter in the

evening of 29th January, 2004, reliance has been placed on the

statement of PW-5 Rajender, who is alleged to have deposed in his

examination-in-chief that at 12:00 to 12:30 a.m. some driver had

informed him that his auto was in police station Welcome. The

credibility of PW-9 has also been challenged on the ground that despite

meeting the wife of the deceased and others, PW-9 had not informed for

several hours at different places that he had seen deceased going with

the applicants at 7:30 p.m. on 28th January, 2005. According to them,

the wife of the deceased, Mala PW6, Sarvesh Kumar had admitted that

Azad Singh had informed her that her husband's TSR was lying at the

police station and when she went to the police station, the TSR was

there. Reference was also made to the testimony of PW-7 Usha, wife of

PW-5 Rajender who deposed that she was called by wife of the deceased

at 6 a.m. and she had come to know that TSR was lying at Police

Station Welcome through the witness Azad Singh, who knew the

& Crl.M.B No.701/2010 in Crl..A No. 595/2010 number of TSR which was lying at the police station Welcome. In the

circumstances, it is asserted that PW-9 is a planted witness and no

reliance should be placed on his deposition for any purpose.

8. The counsel for the appellants/applicants has also sought

suspension of sentence on the ground that the conviction of both the

appellants/applicants is based on the testimony of Sh.Azad Singh PW-9

who was allowed to be re-examined by the Court after the cross-

examination of the said witness was concluded on 18.8.2006. The said

witnesses was allowed to be re-examined illegally, however, the

appellants/applicants have not been allowed to cross-examine Sh.Azad

Singh again after his re-examination despite an application filed for his

cross-examination. Sh.Azad Singh PW-9 was not produced by the

prosecution after his re-examination was recorded illegally and in the

circumstances, the entire testimony of the PW-9 Sh.Azad Singh has to

be discarded and in the absence of his testimony, there is no deposition

inculpating the appellants/applicants, as he is the only person who has

deposed about the deceased being last seen with the accused at 7.30

p.m. on 28th January, 2004. The learned counsel for the

appellant/applicant Sh.Ravi Kumar, has also relied on an application

dated 27th August, 2008 filed under Section 311 of the Criminal

Procedure Code contending, inter-alia that the request of the

prosecution to re-examine the witness PW-9 on 28th August, 2006 was

& Crl.M.B No.701/2010 in Crl..A No. 595/2010 without assigning any reason and such re-examination was illegal,

however, even after allowing the re-examination, the accused should

have been granted an opportunity to cross-examine the witness after

his re-examination. It was further asserted that on 15th April, 2008,

Investigating Officer PW-23 Inspector Bir Singh, was partly cross-

examined and the case was adjourned but later on due to non-

availability of the counsel for the accused his further cross-examination

had been closed and consequently, the further cross-examination of

PW-23 be also allowed to the accused. In the circumstances, by the said

application further cross-examination of PW-9 and PW-23 Sh.Azad

Singh and Sh.Bir Singh was prayed. The said application was allowed

by the trial court by order dated 3rd January, 2009, however, only

further cross-examination of PW-9 was permitted by defence counsel on

behalf of the accused to the extent of re-examination permitted on 18th

August, 2006. The other plea on which, the learned counsel for the

applicants have sought suspension of sentence is that from the

statements of the witnesses, it is apparent that uncovered faces of the

accused were shown, and therefore, the accused were justified in

denying the TIP and no adverse inferences could be taken for refusal to

participate in identification parade.

9. The other plea regarding the suspension of sentence is that the

owner of the scooter Sh.Vishwanath has not been examined and the

& Crl.M.B No.701/2010 in Crl..A No. 595/2010 court has itself doubted the statement of the Sh.Azad Singh PW-9. It is

also pleaded that the motive of looting his TSR has not been

established. Learned counsel for the applicant/ Ashwani Dubey has

also emphasized that the applicants have not been convicted under

Section 392 and 397 of Indian Penal Code although the charge was

framed against them. Learned counsel for the applicant, Mr Shukla, has

also relied on the decision of the Supreme Court in Special Leave to

Appeal (Criminal) No.2356 of 2010 dated 1st October, 2010, titled as

Kushaal Singh v. State of UP in support of his contention that since the

appeal is not likely to be taken up for hearing in near future, the

sentence of the appellant/Ashwani Dubey is liable to be suspended and

he is entitled to be released on bail.

10. Per contra, the learned APP in his laconic submission contended

that Sh.Azad Singh PW-9 in his deposition on 18th January, 2006

categorically deposed that both the appellants/applicants who were

present in the court were the persons who had boarded the TSR of the

deceased when he left Delhi main railway station last time. He has also

pointed out that without any justification, the said witness was not

cross-examined on that date, entailing imposition of cost of Rs.1000/-

and thereafter, he was cross-examined after 8 months on 18th August,

2006. According to him, during this time, the said witness was

influenced by the appellants/applicants. However, even on 18th August,

& Crl.M.B No.701/2010 in Crl..A No. 595/2010 2006 in cross-examination by Sh.R.K.Srivastava, learned counsel for

the accused Ashwani Dubey, he reiterated that he has seen the accused

Ashwani Dubey along with his associates boarding the TSR from a

distance of 5/6 step. He specifically denied the suggestion on behalf of

the accused Ashwani Dubey that he was not present at the place or had

not seen Ashwani Dubey and his associates boarding the TSR of

Sarvesh (deceased). In his cross-examination by learned counsel for

Sh.Ravi Kumar, he deposed that he did not tell the Investigation Officer

in his initial statement that the accused persons had boarded the TSR

of Sarvesh, deceased when he left Delhi main railway station. This fact

was, however, disclosed in the supplementary statement, which was

recorded on 12th March, 2004 after the accused had declined test

identification parade on the ground that their photos were taken.

11. From the perusal of the testimonies of different witnesses by this

Court, it is apparent that PW 9 though deposed that the TSR was

parked out, at the Police Station, Welcome at 11.00 am, however, this

portion of the deposition is contrary to the cogent evidence of other

witnesses. The learned APP has also contended that this was incorrectly

deposed deliberately by the witness under the influence of the accused.

From the perusal of the testimonies of police witnesses on the record

produced by the prosecution, it is inevitable to infer that on the basis of

oral testimony of PW 9, it cannot be inferred that the TSR of the

& Crl.M.B No.701/2010 in Crl..A No. 595/2010 deceased was standing outside the PS Welcome at 11.00 am and this

has been deposed wrongly by the said witness.

12. The learned APP has contended that perusal of the re-

examination reflects that the said witness was not re-examined on that

day, however, PW-9 Sh.Azad Singh was allowed to be cross-examined

by the prosecution as only suggestions were given to the said witness

which were denied by him. It is admitted by the learned APP that before

allowing the cross examination of PW 9, he was not declared hostile. It

is also contended that in the circumstances, even if the said witness

could not be produced pursuant to order dated 3rd January, 2009 for

cross examination by accused, then at the best his cross-examination

by the prosecution recorded on 18th August, 2006 be ignored and not

the entire statement. According to the learned APP even after ignoring

the cross-examination by the prosecution recorded on 18th August,

2006 under the garb of re-examination without declaring him hostile,

the remaining testimony of PW-9 is sufficient to inculpate the

appellants/applicants.

13. Learned APP has also pointed out that though the description of

both the accused was given by PW-9 Sh.Azad Singh in his statement

under Section 161 of Criminal Procedure Code on 29th January, 2004,

however, their names were not given. Their test identification parade

& Crl.M.B No.701/2010 in Crl..A No. 595/2010 was sought in February, 2004 in less than a month however, they

refused to participate in the test identification parade on the ground

that their photographs had been taken. Therefore, prosecution recorded

the supplementary statement of PW-9 Sh.Azad Singh under Section 161

of Criminal Procedure Code on 12th March, 2004 where relevant facts

were detailed. From the statement of PW 9 it is apparent that the

accused had boarded the TSR of the deceased Sarvesh on 28th January,

2004 at 7.30 p.m. According to the post mortem conducted on 30th

January, 2004 at about 1.15 p.m. the time of the death was estimated

to be 40 hours before post mortem which would be about 8.00 p.m. on

28th January, 2004 reflecting proximity between the last seen evidence

and perpetration of crime by the accused. The learned APP has also

contended that on the basis of the secret information received at PS

Sheelam Pur that the accused were trying to sell the three wheeler in

the Kabadi market on 29th January, 2004, they were apprehended and

a bag containing clothes having blood stains was also recovered. PW-10

Investigating Officer ASI Ashiq Ali had informed Police Station Timar

Pur which recorded the Rozanamacha and thereafter on the basis of

disclosure statement of the accused the blood stained knives were

recovered. According to the learned counsel for the prosecution

witnesses, police officers have stated that they had arrested the accused

at 5.30 p.m. on 29th January, 2004 and their testimonies are reliable.

On the testimony of PW-9 Sh.Azad Singh which was recorded after a

& Crl.M.B No.701/2010 in Crl..A No. 595/2010 gap of 8 months after he deposed that the deceased was last seen with

the accused, it cannot be held that the scooter was standing outside the

police station Welcome at 11.00 a.m. Regarding the statement of the

PW-1, Sh.Mahendra Singh deposing that Rozanamacha entries were

made in Malkhana Register at around 10.00 a.m, the contents of

Malkhana Register which were produced before the Court could not be

disbelieved or doubted. The said witness had deposed orally that the

entries were made at 10.00 am whereas time is not given in the

malkhana register. In the circumstances, the recoveries made cannot be

doubted on the basis of oral assertions made by the witness. The

malkhana register only has the column for date on which the articles

are deposited and not time. It is not the case that in respect of

recovered article in the present case the time is not mentioned and

other articles deposited in the malkhana register had entries about the

time. In the circumstances the plea of the learned counsel for the

accused cannot be accepted that the recoveries were made prior to 5.30

a.m and hence cannot be relied on.

14. The plea of the learned counsel for the appellants/applicants that

for every entry made in the Malkhana Register there is correspondence

DD entry is also refuted by the learned APP contending that in the daily

diary entries are made when a police officer leaves for some place and

& Crl.M.B No.701/2010 in Crl..A No. 595/2010 whenever he comes back. In case entry is to be made in Malkhana

be made in daily diary. In any case after seeing the malkhana register,

this Court does not find any manipulation in the same so as to

disbelieve the recoveries made by the prosecution on this ground.

15. The learned APP has also contended that the testimony of

Mahavir Singh PW-17 would show that two knives were recovered

pursuant to disclosure statement of the appellants/applicants from the

bushes on 30th January, 2004. The two knifes recovered were not lying

in a common area unhidden from the public view and in the

circumstances, the recovery cannot be doubted on this ground.

16. Regarding not participating in the TIP, the learned APP has

referred to the deposition of PW-21 Mrs. Archana Sinha who deposed

that the appellants/applicants refused to participate in the test

identification parade on the ground that their photographs had been

taken in the police station. In her cross-examination, it was not

suggested on behalf of either of the accused that the test identification

parade was declined by them because they were not muffled as is

sought to be argued now by the learned counsel for the accused.

& Crl.M.B No.701/2010 in Crl..A No. 595/2010

17. The learned APP has also relied on the statement of Deepak

Uppal, PW-22 to assert that TSR was purchased by Vishwanath in the

replacement scheme whereby TSR DL 1-RG 8733 was acquired but him

remained in the name of Vishwanath who had given it to him, by a sale

letter and other related documents. The certificate in the name of

Vishwanath Ex.P-2, RC P-3, Insurance policy Ex. P-1 of the said TSR

were also produced. He has deposed that the said TSR was given in

2003 to Sh.Shakeel Ahmed who also executed the transfer related

documents however, the registration remained in the name of

Vishwanath. The learned APP has contended that no suggestion was

given to the said witness that the sale letter and other related

documents in respect of the said TSR were not executed and in the

circumstances, the plea of the applicants that ownership of the TSR has

not been established conclusively is not correct, nor any benefit on

account of it can be drawn by the applicants.

18. This Court has heard the learned counsel for the applicants in

extenso on various dates as the learned counsel insisted on detailed

arguments. The plea of the learned counsel for the applicants that the

appeal is not likely to be taken up in near future cannot be accepted as

the appeals of 2010 where the accused are under custody are listed in

regular matters and therefore, the plea that the appeal is not likely to be

taken up in near future and the applicants have already undergone

& Crl.M.B No.701/2010 in Crl..A No. 595/2010 about 4 to 5 years of incarceration would not be a ground to suspend

their sentence and to release them on bail. Learned counsel for the

applicants has also relied on the decision of the Supreme Court in

Special Leave to Appeal (Criminal) No.2356 of 2010 dated 1st October,

2010, titled as Kushaal Singh v. State of UP, where the sentence of the

accused was suspended who had remained in jail for 8 years and there

was no likelihood of an early hearing of the appeal. The facts of the case

relied on by learned counsel are distinguishable. In the said case

despite the order of the High Court of Allahabad to list the appeal for

hearing, the same was not listed and the accused/appellant had been

in jail for more than 8 years and in those circumstances, the Supreme

Court had suspended the sentence of the accused.

19. In Kishori Lal v. Rupa, (2004) 7 SCC 638, the Supreme Court has

indicated the factors that require to be considered by the courts while

granting benefit under Section 389 in cases involving serious offences

like murder, etc.. It will be relevant to refer to the observations made

there at 639-40, (paras 4-6)

"4. 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 against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of

& Crl.M.B No.701/2010 in Crl..A No. 595/2010 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.

5. 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 earlier period when the respondent-accused were on bail.

6. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of 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 is 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."

The aforesaid view is reiterated by the Supreme Court in Vasant

Tukaram Pawar v. State of Maharashtra (2005) 5 SCC 281 SCC p.283,

para 7 and Gomti v. Thakurdas (2007) 11 SCC 160. In (2008) 2 SCC

571, Sidhartha Vasisht alias Manu Sharma Vs State(NCT of Delhi) it

was held that when a person is convicted by a Court, he cannot be said

to be an innocent person until the final decision is recorded by the

Superior Court or appellate Court in his favour. The Supreme Court

rather held that the mere fact that during the period of trial, the

accused was on bail and there was no misuse of liberty, does not per se

warrant suspension of sentence and grant of bail. What is really

& Crl.M.B No.701/2010 in Crl..A No. 595/2010 necessary is to consider whether reasons exist to suspend execution of

sentence and grant of bail. It was further held in para 32 of the said

judgment that the expression within `measurable distance of time' the

appeal is likely to be heard is to be considered keeping in view the

seriousness of offence, the manner in which the crime was said to have

been committed and the gravity of offence and not to suspend the

sentence merely on the ground that the accused has undergone a

number of years of sentence.

20. Prima facie perusal of the testimonies of PW-9 and PW-10 and

other evidence also reveal that the last seen evidence of PW-9 cannot be

discarded. PW-9 had categorically admitted that he had seen the

deceased with the accused at 7.30 p.m. and on the basis of medical

evidence the time of death has been established to be about 8.00 p.m

which is within half an hour of victim being last seen with the accused.

Last seen evidence reflects a proximity to the murder of the deceased

and in the circumstances, it cannot be inferred that the deceased could

be with someone else.

21. The other factor which inculpates the accused is their attempt to

sell three wheeler scooter which used to be plied by the deceased, in the

Kabadi market where on secret information the scooter was seized and

& Crl.M.B No.701/2010 in Crl..A No. 595/2010 the applicants were arrested. Though repeated submissions were made

by the learned counsel for the appellants/applicants that the TSR was

already standing at 11.00 am outside the police station Welcome but on

perusal of the testimonies of the witnesses, the only conclusion which

can be drawn is that the applicants were apprehended in the evening of

29th January, 2004 and recoveries were made. The plea raised by the

applicants that the TSR was standing at 11.00 a.m. outside the police

station Welcome cannot be accepted, nor on the said ground the

applicants shall be entitled for suspension of their sentence.

22. The applicants cannot be absolved of not participating in the TIP

on the plea raised by them. The Magistrate PW-22 Mrs. Archana Sinha

stated that they had refused to participate in the TIP on the ground that

their photographs were taken, however, no other suggestion was given

to her that their faces were also not muffled and therefore they had not

participated in TIP. The testimony of the PW-17 Sh.Mahavir Singh who

has categorically deposed that their faces were covered after their

formal arrest and when they were produced in Karkardooma Court

before the concerned Magistrate cannot be ignored. The said witness

has categorically deposed that throughout the custody of police remand

both the applicants were kept in muffled faces. The deposition of the

said witness PW-17 Sh. Mahavir Singh could not be impeached by the

accused rather another suggestion was given to him that at the time of

& Crl.M.B No.701/2010 in Crl..A No. 595/2010 muffling of the faces and before PW-9 Sh.Azad Singh was present at

police station Welcome and he had been shown the applicants.

Apparently this plea that their faces were seen by PW9 before they were

muffled is different from the plea that they were not muffled. If their

faces had been seen by PW 9 then there was no need to muffle their

faces and the applicants should have raised a plea regarding this. They

rather raised a plea that their photographs had been taken. PW-15 ASI

Sh.Ramesh Kumar in his statement recorded on 16th May, 2006 also

categorically deposed that both the accused were kept in muffled faces.

Even to this witness the suggestion was only given on behalf of the

counsel for Ravi Kumar that he was not in muffled face and on behalf of

the Ashwani Dubey, it was not suggested that he was not muffled. The

accused have taken different pleas which are also mutually sustainable

and in the circumstances the effect of not participating in TIP by the

accused cannot be diluted.

23. Learned counsel for the applicants has also emphasized that the

applicants have not been convicted under Section 392 and 397 of

Indian Penal Code although the charge was framed against them.

Perusal of the order of conviction dated 24th February, 2010 however,

reveals that the said contentions of the accused is not correct as the

Session Court has held as under:-

& Crl.M.B No.701/2010 in Crl..A No. 595/2010 "Definitely and positively, it draws the guilt of the accused persons beyond of reasonable doubts that the accused persons are the only persons who are the real culprits to commit the murder of Sarvesh with their common intention with the anterior motive to commit a robbery."

Merely because while convicting them for robbery, Section 392

and 397 have not been mentioned categorically would not mean that

they have not been convicted for robbery. In the circumstances, even on

this count the applicants shall not be entitled for suspension of their

sentence and for their release on bail.

24. In the entirety of the facts and circumstances, and on perusal of

the testimonies of various witnesses, the pleas and contentions of the

applicants for suspension of their sentence and to release them on bail

cannot be accepted. There is cogent evidence about the deceased being

last seen with the accused in proximity to the time when he has been

murdered. The recoveries of TSR from the accused also cannot be

ignored on the plea that it was standing outside the police station