Dhirubhai Naranbhai Patel, J. - (1.) THIS application has been preferred by this appellant under Section 389 of the Code of Criminal Procedure for suspension of sentence awarded to this appellant by the District & Additional Sessions Judge -I, Gumla in Sessions Trial Case No. 28 of 2011.
(2.) HAVING heard learned counsel for both the sides and looking to the evidences on record, there is prima facie case against the appellant -accused. Previously, the prayer for suspension of sentence was rejected by this Court by an order dated 22nd March, 2014 by passing a detailed speaking order. Paragraphs 4 and 5 of the said order reads as under: - "4. Having heard learned counsel for both the sides and looking to the evidences on record, there is prima facie case against this appellant -accused. As the criminal appeal is pending, we are not much analyzing the evidences on record, but, suffice it to say that looking to the depositions given by P.W. 2, P.W. 3, P.W. 4 and P.W. 5, there is enough evidence against this appellant involving in the offence, as alleged by the prosecution. P.W. 4 and P.W. 5 have categorically stated the role of this appellant -accused. 5. Learned counsel for the appellant submitted that all his contentions may be dealt with by this Court. Hence, we are slightly touching those arguments despite the pendency of the criminal appeal. (a) It is submitted by the learned counsel for the appellant that the appellant has brought the victim to the concerned police station and, hence, she is not an accused, at all. This contention is not accepted by this Court, looking to the depositions given by P.W. 4 and P.W. 5. Prima facie, looking to these two depositions, this appellant wanted the victim to take at Delhi. This appellant has compelled the victim to sleep for the whole night with another accused, namely, Imran who is close relative of this appellant and Imran is still absconding. Looking to the deposition given by P.W. 5, there is enough corroboration to the deposition given by P.W. 4 and as there was dispute between Imran and the appellant for taking away the prosecutrix (P.W. 4) at Delhi, there was some quarrel and the prosecutrix had run away in tempo and this appellant wanted the prosecutrix to come out of the tempo and in that process, her brother -P.W. 5 came and ultimately everybody has gone to the police station. Thus, it is not the fact that this appellant had brought the victim at police station. This is factually incorrect argument, canvassed by the learned counsel for the appellant, as per the evidence on record especially by P.W. 4 and P.W. 5. (b) Learned counsel for the appellant submitted that the appellant is in jail since 8th August, 2010, therefore, sentence may be suspended. We are not agree with this reason. The order of suspension cannot be passed in favour of this appellant. The basis of suspension of sentence has been enumerated by the Hon'ble Supreme Court in the following decisions: (i) It has been held by the Hon'ble Supreme Court in the case of Khilari v. State of U.P. and another reported in : AIR 2008 S.C. 1882 especially in paragraph 10, which reads as under: "10. In Anwari Begum v. Sher Mohammad and Anr. [ : 2005 (7) S.C.C. 326] it was, inter alia, observed as follows: "7. Even on a cursory perusal the High Court's order shows complete non -application of mind. Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. 8.There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are: 1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; 2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; Prima facie satisfaction of the Court in support of the charge. Any order dehors of such reasons suffers from non -application of mind as was noted by this Court, in Ram Govind Upadhyay v. Sudarshan Singh and Ors. { : (2002) 3 S.C.C. 598}; Puran etc. v. Rambilas and Anr. etc. { : (2001)6 SCC 338)} and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav & Anr. [ : JT 2004 (3) SC 442]." (Emphasis supplied) (ii) It has been held by the Hon'ble Supreme Court in the case of Ramji Prasad v. Rattan Kumar Jaiswal and Anr., as reported in : (2002) 9 SCC 366, in paragraph No. 3, as under: "3. Absolutely no reason is shown by the learned Single Judge for adopting this exceptional course in a case where an accused was found guilty by the trial court under Section 302 of the Indian Penal Code. The normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted." (Emphasis supplied) (iii) It has been held by the Hon'ble Supreme Court in the case of State of Haryana v. Hasmat, as reported in : (2004) 6 SCC 175, in paragraph Nos. 6 to 9, as under: "6. 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. 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. 7. 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 period the accused -respondent was granted parole. 8. The learned Sessions Judge, Gurgaon by a judgment dated 24 -10 -2001 had found the accused -respondent guilty. Criminal Appeal No. 100 -DB of 2002 was filed by the respondent. The fact that during the pendency of the appeal the accused -respondent was on parole goes to show that initially the accused -respondent was not given the benefit of suspension of execution of sentence. The mere fact that during the period of parole the accused has not misused the 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 was 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. 9. In Vijay Kumar v. Narendra and Ramji Prasad v. Rattan Kumar Jaiswal it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. The impugned order of the High Court does not meet the requirement. In Vijay Kumar case it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the Court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. These aspects have not been considered by the High Court, which passing the impugned order." (Emphasis supplied) In view of the aforesaid decisions, the contention raised by the learned counsel for the appellant is not accepted especially looking to the evidence on record, as stated hereinabove and looking to the gravity of offence, quantum of punishment and prima facie case. (c) Learned counsel for the appellant submitted that as the appellant is a lady, the order of sentence may be suspended. It is also an extraneous consideration for suspension of sentence under Section 389 of the Code of Criminal Procedure. Hence, this ground is, hereby, rejected." 3. In view of the aforesaid decision and as there is no change in the circumstances whatsoever and looking to the evidences available on record, gravity of offence and quantum of punishment, we are not inclined to suspend the sentence awarded to by this appellant by the learned trial Court.
(3.) I .A. No. 10 of 2015 is, accordingly, dismissed.;