Case Note & Summary
The matter arose from a criminal miscellaneous application seeking suspension of sentence filed by the accused-petitioner before the Rajasthan High Court after conviction in Sessions Case No. 5/2004. The petitioner was convicted by the Additional District Judge, Raisinghnagar, Sriganganagar, vide judgment dated 23.06.2023, under Sections 302/34 and 120B of the Indian Penal Code, and sentenced to life imprisonment with fine. He filed the present application under Section 389 of the Code of Criminal Procedure, 1973, pending his criminal appeal. The prosecution case related to an altercation in which deceased Nemichand was allegedly assaulted. The prosecution alleged that after an initial altercation, the petitioner and co-accused Raju Singh and Sadhu Singh arrived at the spot, with the petitioner driving an Eicher tractor, and that they abused and struck the deceased with a lathi; two witnesses gave testimony that the petitioner caused death by overrunning the deceased with the tractor. The trial court convicted the petitioner and some co-accused, while co-accused Mangilal and Bugar Singh were acquitted. In support of suspension, the petitioner argued that he had remained in custody for more than four years and had been on regular bail during trial without breaching any conditions. He also contended that there was no prospect of early hearing of the appeal. The petitioner pointed out that key eyewitnesses to the initial altercation (PW-1 Krishan Lal, PW-2 Jagdish, PW-4 Mangilal son of Bhura Ram, PW-5 Satpal, PW-6 Dularam, PW-7 Shrawan Kumar, PW-8 Mangilal son of Angar, PW-9 Pavan Kumar, PW-10 Mangilal son of Sohanlal, PW-11 Udham Singh, PW-12 Sukhram, PW-13 Krishan Lal son of Jaisaram, and PW-14 Shankarlal) turned hostile and did not support the prosecution. Additionally, eyewitnesses did not name the petitioner and co-accused Raju Singh and Sadhu Singh in their depositions. Only PW-3 Rai Sahab and PW-16 Krishan Kumar supported the prosecution, but they were the brother and father-in-law of the deceased respectively, and their presence at the place of occurrence was highly doubtful. Thus, the petitioner claimed a reasonable possibility of false implication. The learned Public Prosecutor opposed the application and sought its rejection. The court considered the principles laid down by the Supreme Court in Balram Dangi v. Veer Singh Dangi, which relied on Omprakash Sahni v. Jai Shankar Chaudhary. The court noted that at the stage of Section 389 CrPC, the appellate court should not reappreciate evidence in detail but should see whether the convict has a fair chance of acquittal based on palpable material. Applying this, the Division Bench found that the two witnesses who testified that the petitioner overran the deceased with a tractor were not present during the alleged altercation, so the foundational fact of petitioner's presence remained unproved. The court also noted that the presence of these interested witnesses was seriously questioned. The court highlighted that the petitioner had been on regular bail during trial without breach and had remained in custody for more than four years, with no imminent prospect of appeal hearing. Consequently, the court allowed the application and suspended the sentence till final disposal of the appeal. It ordered release of the petitioner on bail on furnishing a personal bond of Rs.50,000 with two sureties of Rs.25,000 each, subject to conditions including appearance before the trial court in January every year, intimation of change of residence, and similar intimation by sureties. The court further directed the trial court to maintain attendance records and made clear that its observations were prima facie only and not to be relied upon at final hearing.
Headnote
A) Criminal Procedure - Suspension of Sentence During Appeal - Section 389 of the Code of Criminal Procedure, 1973 - Appellate court may suspend sentence if convict has fair chance of acquittal based on palpable material, but must not reappreciate evidence at this stage - Court relied on Omprakash Sahni v. Jai Shankar Chaudhary and Balram Dangi v. Veer Singh Dangi and found prosecution case weak - Held that suspension of sentence warranted. (Paras 9-10) B) Evidence - Hostile and Interested Witnesses - Sections 302, 120B, 34 of the Indian Penal Code, 1860 - Multiple eyewitnesses to initial altercation turned hostile and did not name petitioner; two witnesses supporting prosecution (Rai Sahab and Krishan Kumar) were brother and father-in-law of deceased with doubtful presence - Court observed fair plausibility of acquittal - Held that petitioner made out case for suspension. (Paras 3, 5-6, 10-11) C) Criminal Procedure - Bail Conditions - Section 389 of the Code of Criminal Procedure, 1973 - Suspension order required personal bond of Rs.50,000 with two sureties of Rs.25,000 each and appearance before trial court in January every year - Held that sentence suspended till disposal of appeal subject to conditions. (Paras 13-14) D) Criminal Procedure - Custody Period and Delay in Appeal - Section 389 of the Code of Criminal Procedure, 1973 - Petitioner in custody over four years, on regular bail during trial without breach, no prospect of early hearing - Held these factors support suspension of sentence. (Para 12)
Issue of Consideration
Whether the petitioner is entitled to suspension of sentence under Section 389 of the Code of Criminal Procedure, 1973 pending disposal of his appeal against conviction under Sections 302/34 and 120B of the Indian Penal Code, 1860.
Final Decision
Application allowed. Sentence passed by ADJ Raisinghnagar, Sriganganagar vide judgment dated 23.06.2023 in Sessions Case No. 5/2004 against petitioner Rajendra Singh S/o Shri Sadhu Singh suspended till final disposal of appeal. Petitioner ordered to be released on bail on executing personal bond of Rs.50,000 with two sureties of Rs.25,000 each to satisfaction of trial judge. Conditions: appearance before trial court in January every year; intimation of change of residence; similar intimation by sureties. Trial court to keep attendance record in separate file.
Law Points
- Suspension of sentence pending appeal under Section 389 CrPC may be granted if convict has fair chance of acquittal based on palpable material
- appellate court should not reappreciate evidence at this stage
- hostile witnesses and interested witnesses reduce prosecution credibility
- long custody and delay in appeal are relevant factors
- personal bond and surety conditions can be imposed while suspending sentence.
