Delhi High Court

Moinuddin vs The State Of Nct Of Delhi on 27 October, 2010

Author: Anil Kumar

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 Crl.M.B.No.1334/2010 in Crl.A. No.1122/2010

%                              Date of Decision: 27.10.2010

Moinuddin                                                     .... Appellant
                          Through Mr.J.P.Pandey, Advocate


                                          Versus


The State of NCT of Delhi                          .... Respondent
                    Through Mr.Lovkesh Sawhney, APP.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE S.L.BHAYANA

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


ANIL KUMAR, J.

The appellant/applicant has filed the above noted application

under Section 389 (2) of Criminal Procedure Code for suspension of his

sentence pending his appeal against the order of conviction dated 5th

June, 2010 and sentencing him for imprisonment of life and a fine of

Rs.5,000/- and in default to undergo further rigorous imprisonment for

1 years and sentence of 3 years rigorous imprisonment under Section

201 of Indian Penal Code with a fine of Rs.1000/- and to undergo

further rigorous imprisonment of 6 months in default of payment of fine

by order dated 23rd June, 2010, in Sessions Case No.5 of 2007 arising

out of FIR No.640 of 2006, under Section 302 of Indian Penal Code,

P.S.Nizamuddin, Delhi.

The appellant/applicant has contended that he was arrested on

21st September, 2006 from his native Village Narainpur, Kushinagar

(U.P.) and he has been in jail since then. According to the nominal roll

of the appellant/applicant, he has been incarcerated as on 23rd

October, 2010 for 4 years and 27 days and he has earned remission for

a period of 2 months 10 days and his conduct in the jail is satisfactory.

The appellant/applicant has further contended that he has been

convicted by the trial court without any material on record against him

and his case is based on circumstantial evidence and the prosecution

has failed to prove any circumstance against the appellant/applicant

inculpating him, and therefore, he is entitled to be released on bail

pursuant to suspension of his sentence during pendency of the present

appeal. It is also contended by the learned counsel for the applicant

that testimony of Rubina about deceased being last seen with the

accused has been held to be suspicious by the Trial Court itself.

Learned counsel for the appellant/applicant has very emphatically

contended that the last seen evidence in case of the appellant/applicant

has been disbelieved and recovery of key of the room of the deceased

from his body does not implicate him. Referring to the register of the

guest house, it is contended that the entries made therein negates the

case of the prosecution and documentary evidence shall prevail over the

oral evidence in this regard.

The appellant/applicant has also sought suspension of his

sentence on the ground that he having a large family whose members

are dependent upon him and they are in starving conditions.

The prosecution has prima facie established that the deceased

Ashraf Ali with his wife Rubina had come to the Haji Guest House in

Nizamuddin area on 11th September, 2006. Though the plea of the

appellant/applicant is that the guest house was vacated on 12th

September, 2006 as the entry in the guest house register indicates so,

however, PW-3, Sh. Anwar, Haji Guest House Manager has categorically

deposed that the date of 12th September, 2006 is a mistake as on 15th

September, 2006 the appellant/applicant had met the Manager and the

deceased was with him and the appellant/applicant had assured the

Manager not to remove the deceased and his wife from the room and he

had made the payment of the room because of which the Manager had

agreed not to remove them. The room was also opened by the duplicate

key and the deceased‟s wife was found inside the room has also been

established. In the circumstances, it cannot be held prima facie that the

room in Hazi Guest House was vacated by the deceased and his wife

Rubina on 12th September, 2006.

The appellant/applicant had been staying in another guest house

in the same area of Nizamuddin, named Gehlot Guest House from 13th

September, 2006 and on 16th September, 2006 he had gone out of the

guest house in the early morning hours approximately around the time

of murder of the deceased Ashraf. When the appellant/applicant came

back to the guest house, he was seen not in proper state of mind and

his hands were trembling and there were bloodstains on his clothes.

From the record prima facie it is apparent that the prosecution

has also established the motive of the appellant/applicant to kill the

deceased, which has been inferred from his love letter, Ex.PW-8/B,

written by the appellant/applicant to the wife of the deceased, Rubina

incorporating "Sath Jiyengen Sath Marengen" which was written by the

accused with blood. This letter prima facie has not been contested by

the appellant and cannot be ignored.

The weapon of offences, knife was also purchased by the

appellant/applicant from a nearby locality, has also been established.

The vender who had sold the knife to the accused was examined and

his testimony appears to be reliable. In these circumstances, prima

facie, it cannot be held that the prosecution has not been able to make

out a case against the appellant/applicant and there is no material on

record against him even if the deposition of last seen by the widow of

the deceased is considered with suspicion as has been held by the Trial

Court. Considering these facts and circumstances, this Court does not

find prima facie sufficient reasons to suspend the sentence of the

appellant/applicant and to release him on bail on the ground that there

is not enough material evidence against the applicant.

The learned counsel for the applicant has also contended that the

applicant is in custody for considerable time and his appeal is not likely

to be taken up for hearing in near future and he is entitled for

suspension of his sentence and for his release on bail.

The plea of the learned counsel for the applicant 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 applicant has already undergone

considerable period of incarceration would not be a ground to suspend

his sentence and to release him on bail. 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 at pages 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 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)

where 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 favor. The applicant was

not on bail during the trial before the Trial Court. Had the appellant

been on bail during the trial that would also be not a ground to

suspend his sentence and to release him on bail. 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