Taiyab Ansari vs The State Of Jharkhand
2025 Latest Caselaw 1474 Jhar

Jharkhand High Court

Taiyab Ansari vs The State Of Jharkhand on 10 January, 2025

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad, Navneet Kumar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    Cr. Appeal (DB) No. 1663 of 2023
Taiyab Ansari, aged about 40 years, S/o- Babar Ansari, Resident of
Tangratoli, P.O. + P.S. Narkopi, District- Ranchi (Jharkhand)
                                                          --- --- Appellant
                                 Versus
The State of Jharkhand                                     --- --- Respondent
                                        .......

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

For the Appellant : Ms. Saumya Pandey, Advocate For the Respondent : Mr. Anup Pawan Topno, A.P.P.

Order No.7 / Dated 10th January 2025

I.A. No. 11792 of 2024

The instant interlocutory application has been filed under Section 430(1) of the BNSS, 2023 for suspension of sentence of the appellant in connection with the judgment of conviction dated 26.02.2020 and order of sentence dated 29.02.2020 passed in POCSO Case No. 106 of 2018 arising out of Narkopi P.S. Case No. 21 of 2018 by the learned A.J.C-IV-cum-Special Judge, (POCSO), Ranchi whereby and where under, the appellant along with one another co-convict Mobin Ansari have been convicted for the offence punishable under Section 376(D)(A) of the IPC and under Section 4 & 6 of the POCSO Act and has been sentenced to undergo R.I. for 20 years and a fine of Rs.20,000/- and a default sentence of S.I. for 1 year under Section 376(D)(A) of the IPC and further directed to undergo R.I. for 20 years with a fine of Rs.20,000/- each under Section 4&6 of the POCSO Act separately and a default sentence of S.I. for 1 years. All the sentences were directed to run concurrently.

2. Learned counsel for the appellant has submitted that it is case where even if the testimony of P.W.1-victim will be taken into consideration in entirety, the case cannot be said to be proved beyond all reasonable doubts.

3. It has been contended that co-convict namely Mobin Ansari has been directed to be released on bail by suspending his sentence by a Co-ordinate Bench of this Court vide order dated 16.10.2024 passed in I.A. No. 5161 of 2024 arising out of Cr. Appeal (DB) No. 462 of 2020, copy of which has been appended with the interlocutory application.

4. Learned counsel for the appellant has submitted that the case of the appellant, since, is similar to the co-convict Mobin Ansari, he deserves to be enlarged on bail by suspending his sentence.

5. While on the other hand, learned A.P.P. has vehemently opposed the prayer for bail.

6. It has been contended by the learned A.P.P. by referring to the case of the co-convict Mobin Ansari, who has been directed to be released on bail, that on assessment of the testimony of P.W.1-victim, it would be evident that the victim has emphatically supported the prosecution version, particularly with respect to the culpability committed by the present appellant as also the co-convict Mobin Ansari.

7. Learned A.P.P. further submits that parity cannot be the sole criteria to grant bail and if the bail granted to similarly placed co- accused persons without assigning any cogent reasons or without considering the particular fact, then on the basis of such bail order the bail application should not be allowed.

8. It has been submitted by referring to the order passed by the Co- ordinate Bench in Cr. Appeal (DB) No. 462 of 2020 that the aforesaid aspect of the matter has not been taken into consideration by the Co- ordinate Bench and as such, the principle of parity will not be applicable in the case of appellant.

9. Based upon the aforesaid ground, learned A.P.P. has submitted

2 Cr. Appeal (DB) No. 1663 of 2023 that it is not a fit case for suspension of sentence.

10. We have heard the learned counsels for the parties and gone across the findings rendered by the learned Trial Court in the impugned judgment. We have also gone through the testimonies of the witnesses and the exhibits available in the L.C.R.

11. The arguments which has been advanced on behalf of the appellant is primarily on the principle of parity, since, the Co-ordinate Bench of this Court has passed an order with respect to co-convict Mobin Ansari directing him to be released on bail vide order dated 16.10.2024 in Cr. Appeal (DB) No. 462 of 2020.

12. This Court is conscious of the principle of judicial discipline as also the principle of parity, which is to be made applicable while granting bail/ suspending sentence.

13. At this juncture we would like to refer herein that the exceptions have been carved out to the rule of judicial precedents. It has been explained as rule of sub-silentio. A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court. The Hon'ble Apex Court in Municipal Corporation of Delhi v. Gurnam Kaur. [(1989) 1 SCC 101] has held that, 'precedents sub silentio and without argument are of no moment' and a decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect.

14. Further, the issue of parity has been dealt by the Hon'ble Apex Court in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement, 2023 SCC OnLine SC 1486 wherein it has held as under:

"18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While

3 Cr. Appeal (DB) No. 1663 of 2023 applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration."

15. It is further settled connotation of law that Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail and by only simply saying that another accused has been granted bail is not sufficient to determine whether a case for grant of bail on the basis of parity has been established. Reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230 wherein it has been held as under:

"25. We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527], this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. This Court observed : (SCC p. 515, para 17) "17. Coming to the case at hand, it is found that when a stand was taken that the second respondent was a history- sheeter, it was imperative on the part of the High Court to scrutinise every aspect and not capriciously record that the second respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031] clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the second respondent has been charge-sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside."

26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21-12-2020 [Pravinbhai Hirabhai Koli v. State of Gujarat, 2020 SCC OnLine Guj 2986] , [Khetabhai Parbatbhai Makwana v. State of Gujarat, 2020 SCC OnLine Guj 2988] , the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh

4 Cr. Appeal (DB) No. 1663 of 2023 Bhagubha Vaghela (A-13) to whom bail was granted on 22-10-2020 [Siddhrajsinh Bhagubha Vaghela v. State of Gujarat, 2020 SCC OnLine Guj 2985] on the ground (as the High Court recorded) that he was "assigned similar role of armed with stick (sic)". Again, bail was granted to Vanraj Koli (A16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-10), Kheta (A-

15) and Sidhdhrajsinh (A-13) who were armed with sticks had been granted bail. The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law."

16. It is evident from the proposition laid down in the said cases that the factual aspect governing the case of the culpability said to be committed by one or the other, if found to be exactly the same and having taken into consideration by the concerned Court, then only the principle of parity will be applicable.

17. The Division Bench of the Allahabad High Court in Chander alias Chandra Vs. State of U.P., 1998 Cr.L.J., 2378 has observed that A judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused contains reasons, if the same has been passed in flagrant violation of well settled principle and ignores to take into consideration the relevant factors essential for granting bail, for ready reference the relevant paragraph of the aforesaid judgment is being quoted as under:

"1. If the order granting bail to an accused is not supported by reasons, the same cannot form the basis for granting bail to a co- accused on the ground of parity.

"2. A judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co- accused contains reasons, if the same has been passed in flagrant violation of well settled principle and ignores to take into consideration the relevant factors essential for granting bail."

18. Further in the case of Deepak Yadav Vs. State of U.P. and

5 Cr. Appeal (DB) No. 1663 of 2023 another, (2022) 8 SCC 559, the Hon'ble Apex Court while dealing with the issue of parity has observed which reads as under:

26. "The importance of assigning reasoning for grant or denial of bail can never be undermined. There is prima facie need to indicate reasons particularly in cases of grant or denial of bail where the accused is charged with a serious offence. The sound reasoning in a particular case is a reassurance that discretion has been exercised by the decision maker after considering all the relevant grounds and by disregarding extraneous considerations."

" xxxxxxxxxxxxxxxxxxx"

"39. Grant of bail to the Respondent No. 2/accused only on the basis of parity shows that the impugned order passed by the High Court suffers from the vice of nonapplication of mind rendering it unsustainable. ----"

19. This Court, based upon the aforesaid proposition has also considered the order passed by the Co-ordinate Bench of this Court with respect to the co-convict Mobin Ansari wherein finding has been recorded that though the victim has named the appellant and other co- convict for committing rape upon her but she has shifted her stand in the case of Moin Ansari as would be evident from the deposition of victim- P.W.6. Moreover, the FSL report does not reveal with certainty that the victim was subjected to gang rape. For ready reference the part of the said order is quoted hereunder:

"It appears that though the victim has named the appellant and other accused persons for committing rape upon her but she has shifted her stand in the case of other accused Moin Ansari as would be evident from her deposition as P.W. 6. Moreover, the F.S.L report does not reveal with certainty that the victim was subjected to gang rape. The appellant is in custody for more than six years and the maximum punishment of the appellant is 20 years of rigorous imprisonment."

20. It needs to be referred herein that the victim has not been examined as P.W.6 rather the victim has been examined as P.W.1 and P.W.6 is actually the father of the victim.

21. We thought it proper to also scrutinize the testimony of victim i.e. P.W.1 in order to come to the conclusion with respect to the principle of parity.

22. It is evident from the testimony of the P.W.1 that she has

6 Cr. Appeal (DB) No. 1663 of 2023 specifically taken the name of the present appellant Taiyab Ansari and co-convict Mobin Ansari at para 1,13,14, and 24 of her deposition, for reference, the said order although in Hindi are quoted hereunder for better appreciation of the case:

13. मेरा मुँह हाथ से मोबिन ने दिाया हुआ था और मेरा हाथ भी पीछे से िाां ध बदया था तौबिया से मुँह को दिाया हुआ था।

14. तै यि और मोबिन दोनोां जीांस व गांजी पहने हुए था बकस रां ग का था नही ां िता सकते है ।

24. यह िात सही है बक मेरे साथ अबभयक्ोां ने जो भी शारीररक सां िांध िनाया वह अां धेरी रात में िनाया। साक्षी पनः कहती है बक मोिाइि की िाईट जिा हुआ था। तीन मोिाइि का िाईट जिा हुआ था। मोिाइि बकसका था नहीां पता।

26. चां बक मेरे पास घडी नहीां था इसबिए मैं यह नहीां िता सकती बक मेरे साथ अबभयक्ोां ने बकतने िजे से मेरे साथ शारीररक सां िांध िनाना शरू बकया।

23. P.W.1 has thoroughly been cross examined by the defence. We have also considered the testimony of the victim as has been recorded in the cross examination wherein from para 46 and 54 it is evident that she has supported the prosecution case by categorically stating about all the convicts. For reference, para 46 and 54 of the deposition of P.W.1 is quoted hereunder:

46 मैंने अपने चाचा को यह िात ितायी थी बक सभी अबभयक्ोां ने मेरे साथ ििात्कार बकया था। चरक द्वारा गित व्यवहार बकये जाने की िात भी अपने चाचा को ितायी थी।

54. मेरे शरीर के मख्य जगह पर चोट था। ................................................................"

(The complete sentence of para 54 has been withheld because of derogatory words)

24. It further appears that name of the appellant has been disclosed by the victim in her statement recorded under Section 164 Cr.P.C. and the D.N.A. profile has also supported the prosecution version as disclosed by P.W.1 victim.

25. It further appears that the appellant has not taken the ground in his defence regarding his absence from the place of occurrence. The age of the victim has been assessed to be about 14 years and testimony of P.W.1 clarifies that there is no discrepancy in her statement made in her examination-in-chief vis-à-vis her statement made in the cross examination.

26. This Court applying the proposition laid down for the purpose of applicability of principle of parity, in the light of the order passed by

7 Cr. Appeal (DB) No. 1663 of 2023 the Co-ordinate Bench in the case of co-convict Mobin Ansari in Cr. Appeal (DB) No. 462 of 2020 order dated 16.10.2024, is of the view that P.W.1 has fully supported the prosecution version but we have found no reference to the said aspect in the order passed in the Co- ordinate Bench of this Court in the case of co-convict Mobin Ansari.

27. We, therefore, are of the view of that principle of parity is not applicable in the present appeal.

28. Having regard to the facts and circumstances of the case, the prayer of suspension made through I.A. No. 11792 of 2024 is rejected.

29. It is made clear that any observation made herein will not prejudice the case of the parties on merit as the appeal is lying pending for its consideration.

30. Consequently, I.A. No. 11792 of 2024 is disposed of.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.) A.Mohanty

8 Cr. Appeal (DB) No. 1663 of 2023