Jharkhand High Court
Mukesh Munda Aged About 20 Years vs The State Of Jharkhand on 1 March, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1596 of 2022
With
I.A. No. 110 of 2023
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Mukesh Munda aged about 20 years s/o Indua Munda R/o vill-Vikas Tuku,
P.O. Mesra, P.S. BIT Mesra O.P., District-Ranchi.
....... Appellant
Versus
The State of Jharkhand ....... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Appellant : Mr. Binod Kr. Singh, Advocate
For the Respondent : Mr. Pankaj Kr. Mishra, A.P.P.
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st
03/Dated: 01 March, 2023
Per: Sujit Narayan Prasad, J.
I.A. No.110 of 2023:
1. This interlocutory application has been filed under section 389(1) of the
Cr.P.C for suspension of sentence passed in connection with the judgment of
conviction dated 21.11.2022 and sentence dated 28.11.2022 in Children
Case No.09 of 2021 by learned Additional Judicial Commissioner-IV-cum-
Special Judge-POCSO-cum-Children Court, Ranchi, whereby and
whereunder, the appellant has been convicted under Section 376 D of the
I.P.C. and under Section 6 of POCSO Act, 2012 and sentenced to undergo
rigorous imprisonment of 20 years and fine of Rs.10,000/- and in default of
payment of the fine, S.I. for six months.
2. The ground has been taken as would appear from the interlocutory
application and as per the argument advanced on behalf of the learned
counsel for the appellant that the trial court has not appreciated the evidence
on record in right perspective and without appreciating the testimony of the
witnesses, even though there is contradiction in the testimony of the
witnesses, has convicted the appellant.
Learned counsel for the appellant has taken the ground that in the FIR,
the victim has stated that she has told about the incident firstly to her mother
but in her deposition, she has stated that she has told about the incident
firstly to her Bhabhi, as such, there is contradiction in her statement.
3. It has been argued that the appellant since is languishing in custody, as such,
he may be directed to be released, keeping the sentence in abeyance.
4. Mr. Pankaj Kr. Mishra, learned APP has opposed such prayer by taking the
ground that the learned trial court has taken into consideration the testimony
of the doctor, namely, Dr. Swati Chaitanya (P.W. 6), and has found the on
pelvic examination that Libia minora was red, forthette was also red and
hymen was recent rupture, as such, has submitted that it is not a fit case to
keep the sentence in abeyance.
5. This Court, before considering the application so filed for suspension of
sentence, deems it fit and proper to refer the judgment of the Hon'ble Apex
Court rendered in Kishori Lal v. Rupa and Ors., (2004) 7 SCC 638, wherein
at paragraphs 4, 5 and 6 it has been held, which read 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."
6. Further the Hon'ble Apex Court in Preet Pal Singh vs. State of U.P., (2020)
8 SCC 645 has held at paragraphs 32, 35 and 36, which read as under:
32. In Mauji Ram v. State of U.P. [Mauji Ram v. State of U.P., (2019) 8 SCC
17 : (2019) 3 SCC (Cri) 265] , this Court referred to Ajay Kumar
Sharma v. State of U.P. [Ajay Kumar Sharma v. State of U.P., (2005) 7 SCC
507 : 2005 SCC (Cri) 1702] , Lokesh Singh v. State of U.P. [Lokesh
Singh v. State of U.P., (2008) 16 SCC 753 : (2010) 4 SCC (Cri) 418]
and Dataram Singh v. State of U.P. [Dataram Singh v. State of U.P., (2018)
3 SCC 22 : (2018) 1 SCC (Cri) 675] 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.
36. In Vinod Singh Negi v. State of U.P. [Vinod Singh Negi v. State of U.P., (2019)
8 SCC 13 : (2019) 3 SCC (Cri) 262] , this Court set aside the impugned order
[Umesh Sharma v. State of U.P., 2018 SCC OnLine All 5338] of suspension of
sentence and grant of appeal as the order was devoid of reasons."
7. In view of the mandate of Section 389 of the Cr. P. C., the principles are
different in the case of sentences not exceeding three years as well as in the
bailable offence. Also the cases where the person is convicted of offences
punishable with death or imprisonment for life or imprisonment for a term
not less than ten years, an opportunity to be given to the public prosecutor
under proviso to Section 389(1) of the Cr.P.C.
8. It is, thus, evident, that the reasons have to be germane to justify the grounds
of suspension of sentence. 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.
However, if the convict has undergone more than half of the sentence
in case of fixed term sentence and disposal of appeal is likely to take some
time, the matter needs to be seen in the light of observation made by the
Hon'ble Apex Court in Sonadhar vs. The State of Chhattisgarh (S.L.P
(Cr.) No.529 of 2021, wherein, it has been held that the Delhi High Court
Legal Services Committee would take up cases for those convicts who have
undergone more than half the sentence in case of fixed term sentences and
examine the feasibility of filing the bail application before the High Court.
9. Coming to the facts of the given case and consideration of the judgment
impugned, this Court, has found therefrom that the trial court at para-17 of
the impugned judgment has taken note that the victim has identified the
accused persons as they were calling each other by their names.
The learned trial court has also taken into consideration the testimony
of the doctor, namely, Dr. Swati Chaitanya (P.W. 6), and has found the on
pelvic examination that Libia minora was red, forthette was also red and
hymen was recent rupture.
The learned trial court has also taken into consideration the testimony
of the investigating officer (P.W. 5), who had visited the place of occurrence
just after the institution of the case and recorded the evidence of the
witnesses and has found the case true.
It has also been taken not that the defence has failed to disprove the
fact at the time of cross-examination of the witnesses.
10.The learned trial court after considering the aforesaid facts, came to the
conclusion that victim was subjected to rape, accordingly, convicted the
accused person.
11.This Court has taken into consideration the consideration so made by the
learned trial court and prima facie is not satisfied to keep the sentence in
abeyance. Accordingly, the instant interlocutory application stands
dismissed.
12.The observation herein has been made prima facie only for the purpose of
consideration of suspension of sentence.
13.Let a copy of this order be forwarded to the appellant through Jail
Superintendent.
14.The appeal will be listed in due course.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
Saurabh/-
