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SUPREME COURT OF INDIA
MANMOHAN, N.V. ANJARIA, JJ.
Rajesh Upadhayay – Appellant
Versus
The State Of Bihar & Anr. – Respondent
Criminal Appeal No. 5585 of 2025 (@Special Leave Petition (Crl.) No. 8736 of 2025)
Decided On : 18-12-2025
SLP (Crl.) No. 8736 of 2025
(A) Criminal Procedure Code, 1973 – Section 389 – Suspension of sentence and release on bail – Appellate Court should not reappreciate evidence at stage of Section 389, Cr.P.C. and try to pick some lacunae or loopholes here and there in case of prosecution – Presumption of innocence of accused which is a principle applied in criminal jurisprudence, holds good only until accused is tried – Once accused is convicted at end of trial, presumption of innocence does not continue – Benefit of suspension of sentence can be granted only in exceptional cases more particularly so in cases involving conviction under Section 302, IPC. (Paras 6.1 and 6.3)
(B) Criminal Procedure Code, 1973 – Section 389 – Indian Penal Code, 1860 – Sections 302/149, 147 and 504/149 – Suspension of sentence and release on bail – Delay of three days in sending copy of FIR to court of Magistrate and non-production of original copy of inquest report could be said to be illogical considerations applied by High Court, insofar as those aspects do not have any bearing on credence of prosecution’s case which was otherwise established on evidence before Trial Court – These considerations could not have guided application of mind of High Court – Two of accused persons are absconding – Having regard to relevant considerations such as nature of accusation, events in crime and even attribution of role of appellant, High Court should not have suspended sentence and releases respondent – Impugned judgment and order of High Court suspending sentence of respondent hereby set aside. (Paras 5.3, 8, 9, 10 and 11)
SLP (Crl.) No. 8737 of 2025
Criminal Procedure Code, 1973 – Section 389 – Indian Penal Code, 1860 – Sections 302/149, 147 and 504/149 – Suspension of sentence and release on bail – Participation and role played by respondent in entire commission of offence has to be viewed as grave and could not have been discounted for its seriousness to suspend his sentence imposed upon conviction under Section 302 read with Section 149, IPC – High Court should not have suspended sentence and released respondent – Impugned judgment and order of High Court dated suspending sentence of respondent hereby set aside. (Paras 8 and 10)
Facts of the case:
Appellant-original complainant has questioned judgment and order dated 28.08.2024 of the Division Bench of the High Court of Judicature at Patna in Criminal Appeal (DB) No.542 of 2024, whereby High Court suspended the sentence imposed on respondent No.2 and released him on bail during the pendency of the Appeal.
Findings of Court:
Observations in this order are limited to the aspect of suspending the sentence of respondent No.2 and releasing him on bail, not to influence the course of merit of the trial.
Result : Appeal allowed.
Core Principle on Suspension of Sentence: Benefit of suspension of sentence under Section 389 Cr.P.C. can be granted only in exceptional cases, particularly in convictions under Section 302 IPC. (!) (!) (!) (!) (!) (!)
Appellate Court's Role at Suspension Stage: Appellate court must not reappreciate evidence or pick lacunae in prosecution case under Section 389 Cr.P.C.; presumption of innocence applies only until conviction, after which it ceases. (!) (!) (!)
Distinction Between Bail and Suspension: There is a conceptual distinction between bail and suspension of sentence pending appeal under Section 389 Cr.P.C. (!)
Irrelevant Considerations by High Court: Delay of three days in sending FIR copy to Magistrate and non-production of original inquest report are illogical and have no bearing on prosecution's case established by trial evidence. (!) (!) (!)
Facts of Offence: Deceased (father of complainant) murdered inside temple on 11.12.2021; accused group including Respondent No.2 (armed with country-made pistol) entered forcibly, instigated killing, and one fired shots causing death by firearm injury to head/brain. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Convictions and Sentences of Respondent No.2: Convicted under Sections 302/149, 342/149, 147, 148, 504/149 IPC and Section 27 Arms Act; life imprisonment for 302/149 IPC plus fines; other terms of RI and fines; surrendered 02.02.2022. (!) (!) (!) (!) (!)
Role of Respondent No.2: Armed with pistol, instigated by shouting "kill him"; present inside temple during shooting; fled scene; role grave under 302/149 IPC, not mere instigation. (!) (!) (!) (!) (!)
Additional Circumstances: Two accused absconding; Respondent No.2 undergone ~3 years incarceration; appeal pending. (!) (!)
High Court Errors: Erred in suspending sentence based on minor procedural delays and downplaying accused's armed instigative role in serious temple murder. (!) (!) (!) (!)
Outcome: Supreme Court sets aside High Court's order suspending sentence and granting bail; directs Respondent No.2 to surrender within 10 days; observations limited to bail/suspension, not merits of appeal. (!) (!) (!) (!)
JUDGMENT :
N.V. ANJARIA, J.
Leave granted.
2. The appellant-original complainant has questioned judgment and order dated 28.08.2024 of the Division Bench of the High Court of Judicature at Patna in Criminal Appeal (DB) No.542 of 2024, whereby the High Court suspended the sentence imposed on respondent No.2 and released him on bail during the pendency of the Appeal.
2.1 Respondent No.2-Sheo Narayan Mahto came to be convicted under Section 302 read with Section 149 of the Indian Penal Code, 1860 and sentenced to rigorous imprisonment for life with imposition of fine of Rs. 20,000/-, by learned Additional District and Sessions Judge, 19th Rohtas in Sessions Trial No.101 of 2022. The respondent No.2 was further convicted for the offence under Sections 342/149, IPC and sentenced to undergo rigorous imprisonment of one year and to pay fine of Rs. 500/-. In respect of conviction under Sections 147 and 504/149, IPC, sentence of one year for each offence and fine of Rs. 500 and Rs. 1,000/- respectively was imposed.
2.2 Respondent No.2 came to be convicted also for the offence under Section 148, IPC, for which he was sentenced to rigorous imprisonment for a term of two years with fine of Rs. 1,000/-. Conviction was also recorded by the Sessions Court under Section 27 of the Arms Act and in respect thereof respondent No.2 was sentenced to undergo rigorous imprisonment for a term of four years and to pay a fine of Rs. 3,000/-, with default clause.
3. The appellant-informant’s father named Krishna Behari Upadhyay was murdered. As per the prosecution story, on 11.12.2021 at about 4.30 p.m., the appellant along with his father Krishna Behari Upadhyay reached at Mahavir temple of the village to light ‘Diya’ and to do ‘Arti’. At that time, the accused persons and the co-villagers Bashishthha Singh alias Munna Singh, Ajit Singh, Naga Kumar, Raghunandan Kumar and Sheo Narayan Mahto- respondent No.2 herein wielding the arms and weapons reached, at the temple. Hurling abuses, all of them surrounded the appellant and his father, telling said Krishna Behari Upadhyay that he was not performing Puja and was engaging in politics.
3.1 It is the further case of the prosecution that Pandit Krishna Behari Upadhyay tried to close the main gate of the temple, but the accused persons pushed the gate and made a forcible entry inside the temple. Ajit Singh and Raghunandan Kumar caught hold of Krishna Behari Upadhyay and Munna Singh is stated to have fired at him with a revolver. It was stated respondent No.2 also had a country-made pistol with him and that he as well as another Rajesh Mehto alias Rajesh Kumar were instigatively uttering that the Pandit should be killed as he was excessively indulging in politics. Because of gun fire shots, Krishna Behari Upadhyay fell down inside the temple premises and was in a pool of blood.
3.2 The appellant somehow managed to flee away from the place and informed his family members. Om Prakash Tiwari and Ritesh Mukhia who were the family members, as well as the other co-villagers reached at the place of the offence. They saw Munna Singh, Ajit Kumar, Naga Kumar, Raghunandan Kumar and Rajesh Kumar Mahto alias Rajesh as also respondent No.2-Sheo Narayan Mahto running away in the Eastern direction.
3.3 Upon being taken to the hospital, Krishna Behari Upadhyay was declared dead. A Fardbeyan was given by the appellant on 11.12.2021, pursuant to which the police registered the First Information Report No.96 of 2021 for the offences under Sections 147, 148, 149, 341, 342, 504, 506, 302 and 120 (B), IPC, and for the offence under Section 27 of the Arms Act against the six persons, including respondent No.2. On 02.02.2022, respondent No.2 surrendered before the Trial Court. Chargesheet No.9 of 2022 was filed on 28.03.2022.
3.4 The Sessions Court convicted and sentenced respondent No.2 for the offences as mentioned above. In the appeal proceedings before the High Court, respondent No.2 filed an application praying for suspension of sentence, wh
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