Jharkhand High Court
Kalachand Mahto @ Kalachand Saw ... vs The State Of Jharkhand on 1 March, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1343 of 2022
With
I.A. No. 2001 of 2023
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1. Kalachand Mahto @ Kalachand Saw aged about 23 years son of Babulal
Mahto
2. Pemiya Devi aged about 45 years, wife of Babulal Mahto
Both resident of village-Madhugora, Birajpur, P.O. & P.S. Barwadda,
District-Dhanbad.
....... Appellants
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 Appellants : Mr. Randhir Kumar, Advocate
For the Respondent : Mr. Shashi Kr. Verma, A.P.P.
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st
04/Dated: 01 March, 2023
Per: Sujit Narayan Prasad, J.
I.A. No.2001 of 2023:
1. This interlocutory application has been filed on behalf of appellant no.1
under section 389(1) of the Cr.P.C for suspension of sentence passed in
connection with the judgment of conviction dated 28.09.2022 and sentence
dated 30.09.2022 in Sessions Trial No.120 of 2019 by learned Additional
Sessions Judge-III, Dhanbad, whereby and whereunder, the appellant has
been convicted under Section 304(B)/34 of the I.P.C. and sentenced to
undergo rigorous imprisonment of 10 (ten) years.
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 there is general and omnibus allegation against
all the accused persons and no specific overt act has been alleged against this
appellant and as per the testimony of several independent witnesses it
appears that the deceased had committed suicide by putting fire upon herself
and at the time of occurrence, no family member was present at the place of
incident.
It has further been submitted that the learned trial court without
appreciated all these aspect of the matter, has convicted the appellant which
cannot be said to be sustainable, in the eyes of law.
3. It has been argued that the appellant no.1 is languishing in custody since
13.12.2018, as such, he may be directed to be released, keeping the sentence
in abeyance.
4. Learned counsel for the appellant has also placed reliance upon an order of
the co-ordinate Division Bench of this Court dated 18.01.2023 passed in the
instant criminal appeal, wherein, the appellant no.2, namely, Pemiya Devi
(mother-in-law of the deceased) has been granted bail, as such, has prayed
that the appellant no.1 may also be released on bail.
5. Mr. Shashi Kr. Verma, learned APP has opposed such prayer on the ground
that learned trial court considering the aspects of the matter that as to why
the deceased had committed suicide in her matrimonial house and further no
evidence has been adduced on this behalf by the accused person/appellant, as
such, it is not a fit case where the appellant no.1 be released on bail.
6. 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."
7. 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."
8. 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.
9. 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.
10.Coming to the facts of the given case and consideration of the judgment
impugned, this Court, has found therefrom that death of deceased occurred
due to 98% burn injury and it is no matter whether the deceased has
committed suicide or has been murdered rather the matter is that her death
occurred in an unnatural circumstances and the appellant no.1, being the
husband, was having greater responsibility to explain the cause of the death
of the deceased wife, in such circumstances.
11.So far as the reliance having been placed by the learned counsel for the
appellant no.1 upon an order of the co-ordinate Division Bench of this Court
dated 18.01.2023 in the instant Criminal Appeal, wherein, the appellant no.2,
namely, Pemiya Devi (mother-in-law of the deceased) had been granted bail
keeping the sentence in abeyance, is concerned, this Court, after taking into
consideration the evidence on record as also considering the fact that the
sentence which has been suspended vide order dated 18.01.2023, pertains in
connection with the mother-in-law of the deceased but the present appellant
no.1 is the husband.
12.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.
13.The observation herein has been made prima facie only for the purpose of
consideration of suspension of sentence.
14.Let a copy of this order be forwarded to the appellant through Jail
Superintendent.
15.The appeal will be listed in due course.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
Saurabh/-
