Rohit Oraon vs The State Of Jharkhand
2023 Latest Caselaw 1044 Jhar

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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
      Criminal Appeal (D.B.) No.214 of 2023
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Rohit Oraon                             ....   ...    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. Birendra Kumar, Advocate For the Respondent : Mrs. Vandana Bharti, Spl. P.P.

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Order No. 02/Dated 2nd March, 2023 I.A. No.1692 of 2023

This interlocutory application has been filed under

section 389(1) and (2) of the Cr. P.C for suspension of

sentence passed on 22.12.2022 in connection with judgment

of conviction in POCSO Case No.48/2018, arising out of

Kanke P.S. Case No.60 of 2018, by learned Additional

Judicial Commissioner-IV-cum-Special Judge, POCSO,

Ranchi by which the appellant has been convicted under

Section 376(D) of the Indian Penal Code and directed to

undergo rigorous imprisonment for 20 years with a fine of

Rs.10,000/- and in default of payment of fine he has been

further directed to undergo S.I. for six months.

Mr. Birendra Kumar, learned counsel for the

applicant/appellant has submitted that the prosecution has

failed to prove the case beyond all shadow of doubt, since

there is no cogent evidence to prove the guilt against the

applicant/appellant.

He further submits that the identification of accused

persons is highly doubtful because of the reason that the

victim has admitted in her deposition that she did not k now

the accused persons from before and no TIP has been

conducted in this case.

While on the other hand, Mrs. Vandana Bharti,

learned Special Public Prosecutor, has submitted that it is

incorrect on the part of the applicant to take the ground that

there is no cogent evidence, rather, the victim and her family

members have fully corroborated the prosecution version

which has been supported by the Investigating Officer and the

Doctor.

She, therefore, has submitted that it is not a case

where the sentence is fit to be kept in abeyance.

We have heard learned counsel for the parties and

perused the finding recorded by the learned trial court.

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. [ (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."

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

the case of 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 of those convicts who have undergone more than half

the sentence in case of fixed term sentences and examine the

feasibility of filing bail applications before the High Court.

Reverting back to the facts of the present case, on

appreciating the finding recorded by the learned trial court, it

appears from the impugned judgment that the victim has

specifically stated that the appellant committed rape upon

her and she identified the appellant before the court which

was not challenged by the defence.

It further appears that the other witnesses have also

identified the accused before the court.

The position of law is well settled as would be evident

from the judgment referred hereinabove that the Appellate

Court, at the stage of suspension of sentence and release on

bail till disposal of appeal, has to examine a case in patent

infirmity in the order of conviction that renders the conviction

prima facie erroneous. The evidence is not to be reassessed or

to reanalyze to suspend the execution of the sentence. The

detailed observation on merit of the case are called for, at this

stage, lest it prejudices the case of the petitioner but the

matter has been set in the light of the principles of law.

This Court, after taking into consideration the

evidence on record and the principle to keep the suspension

in abeyance in the case of conviction, during the pendency of

the appeal, is of the view that no prima facie case is made out

to keep the sentence in abeyance.

The instant interlocutory application, being I.A.

No.1692 of 2023, is accordingly, dismissed.

The observation herein has been made prima facie

only for the purpose of consideration of suspension of

sentence.

Let a copy of this order be forwarded to the appellant

through Jail Superintendent.

Criminal Appeal (D.B.) No.214 of 2023

Admit

Call for the Lower Court Records.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.) Birendra/