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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Tashi Rabstan and Javed Iqbal Wani, JJ.
(Through Virtual Mode)
Vishal Sharma and Ors. – Appellants
Versus
Union Territory of Jammu and Kashmir through SHO P/S Domana and Anr. – Respondents
CrLA(D) No.08/2020
Decided on : 02-06-2021
Code of Criminal Procedure, 1973-Section 389-Suspension of sentence and grant of bail-Section 389 Cr.P.C. confers discretionary jurisdiction on Appellate court to suspend execution of sentence during pendency of appeal on valid reasons recorded in writing-Law being settled that although High court is not debarred from suspending sentence and granting bail to a convict but that power has to be exercised sparingly while objectively assessing matter and that too in particular circumstances of each case-Accused/applicants have been held guilty and convicted/sentenced for commission of a heinous offence against then serving Law Officer (Deputy Advocate General of State) after a full dressed trial for about twelve years by trial court and upon evaluation of ocular, circumstantial, medical and scientific evidence-Such position cannot be overlooked by this court at this stage while considering instant applications for suspension of sentence and grant of bail-Applicants in peculiar facts and circumstances of case are not held entitled to suspension of sentence and consequent grant of concession of bail during pendency of their respective appeals-Applications dismissed. (Paras 13, 14 and 19)
Result-Applications dismissed.
Judgment
1. By this common order three applications bearing CrLM No. 687/2020, CrLM No. 1446/2020 and CrLM No. 404/2021 filed by the applicants for suspension of sentence and grant of bail pending disposal of their respective above referred appeals shall be disposed of.
2. The applicant in CrLM No. 687/2020 Vishal Sharma is convicted and sentenced in terms of judgement dated 07.07.2020 and order dated 09.07.2020 respectively passed by the court of 1st Additional sessions Judge, Jammu in criminal challan titled as “State of J&K Vs. Vishal Sharma and Ors”., having been held guilty for commission of offences punishable under Sections 302, 34, 341 RPC and Section 30 Arms Act sentenced to undergo life imprisonment and fine of Rs. 10,000/- for commission of offence punishable under Section 302 RPC, simple imprisonment of one month and fine of Rs. 500/- for commission of offence punishable under Section 341 RPC and simple imprisonment of six months and fine of Rs. 2,000/- for commission of offence punishable under Section 30 of Arms Act. The sentences imposed have been directed to run concurrently.
3. The applicant in CrLM No. 1446/2020 Ashok Kumar stands convicted for offences under Section 302, 341 and 34 RPC having been sentenced to undergo imprisonment for life with fine of Rs. 10,000/- for commission of offence under Section 302 RPC and simple imprisonment of one month with fine for commission of offence under Section 341 RPC. The sentences imposed have been directed to run concurrently.
4. The applicant in CrLM No. 404/2021 Amrish Khajuria stands convicted for commission of offences under Section 302, 341 34 RPC and 4/25 Arms Act having been sentenced to undergo life imprisonment with fine of Rs. 10,000/- for commission of offence under Section 302 RPC and simple imprisonment of one month with fine of Rs. 500/- for commission of offence under Section 341 RPC and simple imprisonment of two years with fine of Rs. 2000/- for commission of offence under Section 4/25 Arms Act. The sentences imposed have been directed to run concurrently.
5. Before adverting to the applications in hand, a brief background of the case as emerging from the record would reveal that on 10.01.2008, Sub Inspector Shiv Dev Singh while on patrol duty in Muthi Area received a verbal report from one Manga Ram regarding an attack with sharp edged weapons/ Tokas and indiscriminate firing with his pistol by Vishal Sharma, Vikas Sharma, Rohit Kumar, Labha Ram, Ashok Kumar and three other persons on Ajit Singh Dogra (the then Deputy Advocate General) while the said advocate was coming from the court in Car No. JK02A-6729.
6. Upon receipt of the said verbal report the S.I sent a docket to incharge/SHO Police Station Domana, for registration of FIR, whereupon FIR No. 11/2008 for offences under Section 307, 341, 147, 34 RPC and 3/25, 4/25 Indian Arms Act came to be registered in Police Station Domana and investigation set into motion. The injured advocate on 12.01.2008 had been shifted from JMC Jammu to Apollo Hospital Delhi, where he succumbed to his injuries on 19.01.2008 whereupon his postmortem had been conducted by Delhi Police in Medical Institute Delhi resulting into adding of offences under Section 302, 149 RPC.
7. After completion of the investigation and filing of the charge sheet before the trial court, the accused Vishal Sharma on 14.10.2008 came to be charged for commission of offence under Section 302, 341, 147, 149 RPC and Section 30 Arms Act, whereas accused Amrish Khajuria came to be charged for commission of offences under Section 302, 341, 147, 149 RPC and 4/25 Arms Act. The accused Ashok Kumar came to be charged for commission of offences under Section 302, 341, 147, 149 RPC along with accused Labha Ram, Raj Kumar (died during trial) Gourav Ram and Mohan Singh. The accused pleaded not guilty to the charges framed against them.
8. The prosecution in order to bring home the guilt of the accused persons produced/examined 24 witnesses out of listed 40
A court should generally suspend a fixed-term sentence pending appeal unless exceptional circumstances indicate otherwise.
Suspension of sentence and release on bail – Parameters governing suspension of sentence post-conviction are qualitatively distinct from those applicable at stage of pre-trial bail – Such relief can ....
(1) Suspension of sentence and release on bail – Accused is presumed to be innocent till he is held guilty by a court of competent jurisdiction – Once accused is held guilty, presumption of innocence....
The court held that the discretion to suspend a sentence post-conviction must be exercised judiciously, considering the nature of the offence and the likelihood of appeal success.
The serving of half of the sentence does not automatically entitle a convict to suspension of sentence.
Suspending a sentence for a serious offence like murder requires a rare demonstration of exceptional circumstances, without re-evaluating evidence during bail applications.
The main legal point established in the judgment is that the Court has the discretion to suspend the sentence of the Appellants during the pendency of the appeals, considering the principles laid dow....
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