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2009(1) Supreme 585
SUPREME COURT OF INDIA
(From Rajasthan High Court)
Tarun Chatterjee and H.L. Dattu, JJ.
Angana & Anr. — Appellants
versus
State of Rajasthan — Respondent
Criminal Appeal No. 221 of 2009
(Arising out of SLP(Crl) No. 8348 of 2008)
Decided on : 06-02-2009
(2001) 10 SCC 463; (1997) 4 SCC 291; (1978)1 SCC 579; AIR 1931 All 356; (1999) 4 SCC 421; (2001) 10 SCC 338; (2004) 7 SCC 638; (2005) 5 SCC 281; (2007) 11 SCC 160; (2008) 5 SCC 230 – Relied upon.
(b) Code of Criminal Procedure, 1973 – Section 389 – Appellants not misusing or abusing their bail during pendency of the case in Sessions court – Most of the co-accused acquitted – There is also no possibility of the accused absconding during suspension of the sentence – Appellants are entitled to relief u/s 389. (Para 21)
Facts of the case :
1. Complainant Bhobal complained that on 6.3.1993, while complainant and other members were sleeping in the house, accused/appellants and others who are acquitted, with the intention of stealing/looting and killing, came inside the house.
2. Then accused/appellants and other started assaulting them by gun fire and pelting stones which in turn caused serious injuries to complainant and other.
3. Trial court convicted Angna and Chouthi for the charge under section 326 read with section 34 of IPC and acquitted them from all other charges and all the other accused persons were acquitted vide judgment dated 24.7.2008.
4. While the appeal against the conviction is still pending, High Court rejected the application filed under Section 389 of Cr.P.C.
Finding of the Court :
High Court could have suspended the sentence and granted bail to the appellants.
Result : Appeal disposed of.
ORDER
1. Leave granted.
2. This appeal is directed against the order passed by the High Court of Judicature for Rajasthan, Bench at Jaipur, in S.B. Cr. Misc. (SOS) Application No. 781/2008 in Criminal Appeal No. 758/2008 dated 22.8.2008. By the impugned order, the High Court while admitting the appeal has rejected the application seeking bail/suspension of sentence filed by the appellant.
3. Facts in brief are as follows; Complainant PW/2, namely, Bhobal submitted a written report at police station on 6.3.1993, stating that on 6.3.1993, complainant and other members were sleeping in the house when accused/appellants and others who are acquitted, with the intention of stealing/looting and killing, came inside the house. One Shanti heard some noise and started shouting. Listening to her cries other members came out and saw that accused/appellants and other were having kattas. Then accused/appellants and other started assaulting them by gun fire and pelting stones which in turn caused serious injuries to complainant and other. Investigation was conducted and a case was registered under sections 147, 148, 149, 323, 452 and 307 of the IPC against fourteen persons on 6.3.1997 and was committed to the Additional District & Session Judge, Deeg. Accused/appellants and others have stated that in this case first information report of the cross-case of this matter was lodged with the same police station prior to the present incident, in which death of one Samunder Singh has been caused. Also they argued that the first information report has been lodged by the complainant falsely to be saved of that cross-case. Trial court after hearing the parties convicted Angna and Chouthi for the charge under section 326 read with section 34 of IPC and acquitted them from all other charges and all the other accused persons were acquitted vide judgment dated 24.7.2008. Accused were awarded sentence of four years rigorous imprisonment with a fine of Rs. 2000/-.
4. Both the accused persons being aggrieved by the said judgment have filed criminal appeal before the Hon’ble High Court and also have filed criminal application under section 389 Cr.P.C. for suspension of execution of sentence and for releasing the accused/appellants on bail during pendency of the appeal.
5. The learned counsel for the accused/appellants contended before the High Court that in the personal defence, the accused fired the gun shot on the complainant and the complainant also received injuries. Further, the injuries received by the complainant are not grievous in nature. It was stated that from the side of the accused also, one person Samundar died on the spot due to injuries inflicted by the complainant side. Because it was a free fight and in private defence, the fire arm was used. It was further contended that during trial, the accused appellants were on bail, therefore, looking to facts and circumstances of the case, the sentence awarded to accused/appellants be suspended during pendency of the appeal.
6. The High Court while rejecting the application filed under Section 389 of Cr.P.C has observed :-
“Having heard rival submissions of the respective parties and upon careful perusal of judgment impugned, record of the case, more particularly, medical report and statements of doctors, without expressing any opinion on merits and demerits of the case stated that, the inevitable conclusion is that the application seeking suspension of sentence deserves to be rejected and thus, the bail/suspension of sentence application stands rejected.”
7. Aggrieved by the impugned order passed by the High Court accused/appellants have come before us seeking suspension of execution of sentence and for releasing the appellants on bail during pendency of the appeal.
8. We have heard learned counsel for the accused/appellants and learned counsel for the respondents.
9. Learned counsel for the appellants, submitted that High Court of Judicature at Jaipur was not justified in not suspending the sentenc
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