Rahul Rai @ Rahul Kumar Rai @ Rahul ... vs The State Of Jharkhand
2023 Latest Caselaw 3250 Jhar

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   IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Cr. Appeal (DB) No. 591 of 2023
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Rahul Rai @ Rahul Kumar Rai @ Rahul Kr Ray ... ... Appellant Versus The State of Jharkhand ... ... Respondent

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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR

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For the Appellant : Mr. Jitendra Shankar Singh, Advocate Mr. Rakesh Kumar, Advocate

For the Respondent : Mrs. Anuradha Sahay, A.P.P

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th Order No. 06 : Dated 30 August, 2023 Per Sujit Narayan Prasad, J:

I.A. No. 6879 of 2023

1. The instant interlocutory application has been filed

under Section 389 (1) of the Code of Criminal Procedure

on behalf of appellant, named above, for suspension of

sentence during the pendency of the instant appeal after

suspending the impugned order of sentence dated

10.03.2023 passed by the learned Additional Sessions

Judge-I, Giridih in Sessions Trial No. 97 of 2019 arising

out of Jamua P.S. Case No. 306 of 2018 corresponding

to G.R. No. 159 of 2019 whereby and whereunder the

appellant has been sentenced to go rigorous

imprisonment for one years for the offence under

Section 323/34; R.I. for three years for the offence

under section 324/34; R.I. for one year for the offence

under Section 448/34 and imprisonment for life for the

offence under Section 302/34 IPC and to pay a fine of

Rs. 20,000/- and in default of payment of fine R.I for

one year. All the sentenced were directed to run

concurrently.

2. Mr. Jitendra Shankar Singh, learned counsel assisted

by Mr. Rakesh Kumar, learned counsel for the

appellant/applicant has submitted that it is a case

where the prosecution has miserably failed to prove the

charge beyond all reasonable doubt. Such argument has

been made on following grounds:

[I].The serious discrepancy is with respect to date of

commission of crime of murder, which would be evident

from bare perusal of post mortem report, wherein the

post mortem has been shown to be conducted on

25.11.2018 but as per prosecution version the deceased

died due to assault on 05.11.2018. Therefore, there is

serious discrepancy with respect to date of occurrence of

murder of deceased as per post mortem report vis-a-vis

F.I.R. and inquest report. But the learned trial Court

has not appreciated the aforesaid fact in right

prospective.

[II].The witnesses have also not corroborated the

prosecution version which would be evident from the

testimony of ocular witness and if compared with the

testimony of doctor who has conducted post mortem.

[III].It has also been argued on behalf of appellant that

the witness no. 6, who is informant and son of the

deceased in this case and had sustained injury, has

been declared hostile.

[IV].Admittedly since there were land dispute between the

parties, as such the appellant has been dragged in the

instant case.

3. Learned counsel for the appellant on the aforesaid

premise has submitted that it is a fit case where the

sentence is required to be suspended.

4. While on the other hand, learned A.P.P. appearing for

the respondent-State of Jharkhand has opposed the

prayer for suspension of sentence on the following

grounds:

[I].There is no discrepancy, as has been argued on

behalf of the appellant, regarding date of commission of

crime if the inquest report will be taken into

consideration where the date has been shown to be

05.11.2018 at 9.45 a.m.

[II].The carbon copy of inquest report of deceased

showing the date 05.11.2018 has been marked as

Exhibit 3/1 without any objection, as would appear

from order dated 10.02.2023 recorded by learned trial

Court, as available in the Lower Court Record.

[III].The argument so far as discrepancy in the post

mortem report regarding the date of conducting the post

mortem that has been shown to be 25.11.2018 is

concerned, the same has properly been dealt with by

learned trial Court by taking into consideration the

reference of post mortem number to be 2906/18 dated

05.11.2018 in the right side of the post mortem report

which has duly been signed by the doctor who has

conducted the post mortem by putting his signature and

seal on it having date 05.11.2018.

The Additional Public Prosecutor, based upon the

same, has submitted that there is no discrepancy so far

as the date of conducting of post mortem is concerned

since the doctor has put his signature on 05.11.2018

the date when the post mortem was conducted.

[IV].The submission has also been made that reference

of date of 25.11.2018 in the left side of post mortem

report cannot be said to have any bearing on the

prosecution version since the date which has been

mentioned by the doctor who has conducted the post

mortem will have bearing so far as the evidentiary value

of post mortem report is concerned.

[V].So far as the argument which has been advanced

regarding contradiction in the documentary evidence

i.e., post mortem report to the ocular witness is

concerned, it has been submitted that there is no

contradiction rather the testimony of P.W. 5 (doctor),

who has examined the deceased at the initial stage, is

found to be in conformity with the description of injury

as mentioned in testimony of P.W. 2 and P.W. 4.

[VI].It has also been contended that P.W. 4, Renu Devi

had also sustained injury and has disclosed the

complicity of the appellant in the specific term and

remained consistent in the cross-examination so as

P.W.2.

5. Further contention has been raised by referring to the

testimony of P.W. 5, the doctor who has examined the

deceased at the initial stage on 30.10.2018 when the

occurrence took place and found multiple incised wound

over central scalp four in number each about 2.5 "X

¼"X Muscle deep up to bone. It has been contended by

referring to the testimony of P.W. 2 that the appellant

was also having with the sword in his hand and has

assaulted on the forehead, hence the description of

assault and sustaining the injury therefrom by the

deceased is in conformity with the testimony of P.W. 5,

the doctor.

6. Learned A.P.P based upon the aforesaid argument has

submitted that it is not a case where sentence is

required to be suspended.

7. This Court has heard learned counsel for the parties,

perused the finding recorded by learned trial Court in

the impugned order as also the testimony of the

witnesses including the documents available in Lower

Court Records.

8. This Court, before appreciating the argument advanced

on behalf of parties and in order to examine as to

whether in the given facts of the case it is a fit case

where sentence is to be suspended, deems it fit and

proper to refer the settled position of law regarding

consideration to be made at the time of suspension of

sentence, as has been settled by Hon'ble Apex Court in

Kishori Lal v. Rupa and Ors., reported in (2004) 7

SCC 638 wherein at paragraph 4, 5 and 6 it has been

held as under:

"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 accused- respondents 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."

Further the Hon'ble Apex Court in the case of

Preet Pal Singh vs. State of U.P. reported in (2020) 8

SCC 645 has held at paragraphs 27, 32 and 36 held as

under:

"32. In Mauji Ram v. State of U.P. [ (2019) 8 SCC 17] , this Court referred to Ajay Kumar Sharma v. State of U.P. [ (2005) 7 SCC], Lokesh Singh v. State of U.P. [ (2008) 16 SCC 753] and Dataram Singh v. State of U.P. [ (2018) 3 SCC 22] and stated categorically that this Court had time and again emphasised the need for assigning reasons while granting bail.

35. There is a difference between grant of bail under Section 439 CrPC in case of pre-trial arrest and suspension of sentence under Section 389 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. [Dataram Singh v. State of U.P., (2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675] 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 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) CrPC."

The Hon'ble Apex Court in the case of Omprakash

Sahni v. Jai Shankar Chaudhary & Anr., (2023) 6

SCC 123 has been pleased to hold as under:

"31. In Vijay Kumar v. Narendra [Vijay Kumar v. Narendra, (2002) 9 SCC 364 : 2003 SCC (Cri) 1195] and Ramji Prasad v. Rattan Kumar Jaiswal [Ramji Prasad v. Rattan Kumar Jaiswal, (2002) 9 SCC 366 : 2003 SCC (Cri) 1197] , it was held by this Court that in cases involving conviction under Section 302IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. In Vijay Kumar [Vijay Kumar v. Narendra, (2002) 9 SCC 364 : 2003 SCC (Cri) 1195] , it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302IPC, 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.

33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the trial court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the abovesaid question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach."

9. It is evident from the aforesaid judgment, as referred

herein above, that the suspension of the sentence is to

be suspended only in a case where there is chance of

acquittal and if prima facie case is made out.

10. We are now proceeding to examine the rival

submissions advanced on behalf of parties.

11. The foremost argument which has been advanced

on behalf of appellant is that there is discrepancy in the

post mortem report wherefrom it is evident that the date

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of death is suspicious since in the post mortem report

the date of death has been mentioned as 25.11.2018.

12. We have perused the finding recorded by learned

trial Court in this regard and found therefrom that the

learned trial Court has considered the aforesaid

argument and by taking into consideration the post

mortem report which has been marked as Exhibit 5

wherein in the right side of the post mortem number

has been mentioned as 2906/18 dated 05.11.2018

which has duly been signed by the doctor, who has

conducted the post mortem by putting his signature

with seal along with date 05.11.2018.

13. Further the said post mortem report is in

conformity with the carbon copy of the inquest report

which has been marked as Exhibit 3/1 without any

objection, as would appear from order-sheet of trial

Court dated 10.02.2023. The inquest report is also in

admission wherein also the date of death has been

shown to be 05.11.2018 at 9.45 a.m.

14. There is no dispute about the position of law that if

any document is being presented either by the

prosecution or the defence under Sub-Section(1) of

Section 294 of Cr.P.C. and if the said document is not

disputed, then the document will be said to be

substantive evidence under the provision of Sub-Section

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(3) of Section 294 of Cr.P.C.

15. We are conscious of the fact that in case of

contradiction in the postmortem report and the inquest

report, the postmortem report will prevail but here it is

not a case of contradiction in the postmortem report and

inquest report, rather, they are consistent so far as the

date of commission of crime of murder is concerned,

since the inquest report refers the date of commission of

crime of murder as 05.11.2018 as also the doctor who

has conducted the postmortem on the deceased put his

signature mentioning the date 05.11.2018. Hence, both

the documents are consistent to each other.

16. This Court on consideration of the signature of the

doctor with a date 05.11.2018 and after having referred

the number 2906 dated 05.11.2018 in the right side of

the post mortem report, is prima facie of the view that it

is not such a contradiction, if taken together with the

date referred in post mortem report to be 25.11.2018

wherein there is no signature/initial of the doctor,

which leads to vitiation of entire prosecution case.

Therefore, we are prima facie of the view that there is no

reason for suspension of sentence on this ground.

17. So far as contradiction of testimony of ocular

evidence with the testimony of doctor is concerned, we

have examined the testimony of P.W. 2 and P.W. 4, from

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which it is evident that P.W. 2 has supported the

prosecution version, while P.W. 4, an injured witness,

whose presence cannot be disputed and has sustained

injury and was examined by P.W.5, doctor, along with

the deceased on 30.10.2018 the day of date of

occurrence.

18. Both the witnesses have deposed that the

appellant has assaulted with sword since sword was

said to be in hand of appellant as deposed by these two

witnesses that such injury was given by the appellant

on the head.

19. We have perused the injury report in order to

assess the contradiction part by taking into

consideration the testimony of P.W.5 who has treated

the deceased (Baikunth Prasad Rai) on 30.10.2018 and

found therefrom following injuries:

"(i).Multiple incised wound over central scalp 4 in number

about 2.5"X ¼" X Muscle deep up to bone.

(ii).Right forearm compound fracture."

20. One of the injuries i.e. is incised in forehead, which

prima facie establishes that the description of assault

which has been narrated by P.W. 2 Khushbu Devi and

P.W. 4 Renu Devi cannot be said to be in contradiction.

21. This Court, based upon the aforesaid reason, is not

prima facie satisfied to suspend the sentence.

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22. Accordingly, the instant Interlocutory Application

I.A. No. 6879 of 2023 stands rejected.

23. The observation herein has been made prima facie

only for the purpose of consideration of suspension of

sentence.

24. Let a copy of this order be forwarded to the appellant

through Jail Superintendent.

25. The appeal will be listed in due course.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.) Alankar/-