Jharkhand High Court

Champa Murmu vs The State Of Jharkhand on 1 March, 2023

                                  1


IN THE HIGH COURT OF JHARKHAND AT RANCHI

                   Cr. Appeal (DB) No. 583 of 2022
Champa Murmu                                 .......                Appellant
                         Versus
The State of Jharkhand                       .......                Respondent
                        ---------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
              HON'BLE MR. JUSTICE SUBHASH CHAND
                        ----------
For the Appellant       : Mr. Rohit Agarwal, Advocate
For the State           : Mr. Vineet Kr. Vashistha, Spl.P.P
                        -----------
           st
6/Dated: 1 March, 2023
Per: Sujit Narayan Prasad, J.

I.A. No.1855 of 2023

This interlocutory application has been filed under section 389(1) of

the Cr. P.C for suspension of sentence passed in consequence of the

judgment of conviction dated 27.04.2022 in Sessions Trial No.178 of 2018

by learned Additional Sessions Judge-II, Seraikella Kharsawan, whereby and

whereunder the appellant has been convicted under Section 302, 201/34 of

the I.P.C and ¾ of Prevention of Witch (Diaan) Practices Act and directed

to undergo rigorous imprisonment for life with fine of Rs.10000/- each for

the offence under Section 302 of I.P.C and in default of payment of fine to

undergo S.I for six months, further sentenced to undergo R.I for 7 years with

fine of Rs.3,000/- for the offence under section 201 I.P.C and in default to

pay fine to undergo S.I for three months. Further the appellant has been

sentenced to undergo R.I for three months with fine of Rs.1000/- for the

offence under section 3 of the Prevention of Witch (Diaan) Practices Act and

in default of payment of fine to undergo S.I for 15 days and R.I for six

months with fine of Rs.2,000/- for the offence under section 4 Prevention of

Witch (Diaan) Practices Act and in default of payment of fine further S.I for

one month. All the sentences shall run concurrently.

Learned counsel appearing for the appellant has submitted that the

judgment of conviction has been passed by the learned trial court without

taking into consideration any cogent evidence. It has been submitted that the

informant who claimed himself to be eye witness has not attributed anything

specific against the appellant rather the same has been attributed against co-

convict Chana Murmu and Labha Tudu. It has further been submitted that

nothing incriminating article has been recovered from her possession which

could prove the involvement of the appellant in the instant case.

On the other hand, Mr. Vineet Kumar Vashistha, learned Spl.P.P

appearing for the State has submitted that the learned trial court has taken

into consideration the statement of the informant (P.W-6) at paragraph 9 of

the impugned judgment wherein the name of the appellant has specifically

come in committing the crime, therefore, no prima facie case is available at

this stage for exercising the power conferred to this Court under Section

389(1) of the Cr.P.C.

We have heard learned counsel for the parties and considered the rival

submissions made on their behalf.

Before entering into the ground as has been agitated in the instant

interlocutory application for suspending the sentence, the reference of the

judgment of the Hon'ble Apex Court rendered in the case of Kishori Lal v.

Rupa and Ors., reported in (2004) 7 SCC 638 is required to be made,

wherein at paragraph 4, 5 and 6 it has been held, which reads 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 paragraph 27, 32 and

36 which reads 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 Cr P C in case of pre-trial arrest and suspension of sentence under Section 389 Cr P C 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) Cr P C."

In view of the mandate of Section 389 of the Cr. P. C., the principle

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.

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