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2007 DAILYLAW 2152 (DEL)

YOGESH v. STATE OF DELHI

2007-09-05

Shiv Narayan Dhingra

body2007
( 1 ) THIS application under Section 389 Cr. P. C. has been made by the appellant Yogesh for suspension of sentence. The appellant has been convicted by the trial court under Section 324 and 394 read with Section 34 IPC. The appellant, in company of three more accused persons had committed an armed robbery on 10th March, 1994 of Rs. 8 lac from victims Ravinder Kaur, Surjeet singh and Amarjeet Singh with the help of weapons like Mouser, two country-made pistols etc. Two of the co-accused Sanjay and Praveen were convicted under section 324/34, 394/34 IPC and under Arms Act as well. It was a daring daylight robbery causing injuries to the victims. In the application, it is stated by the appellant that no stolen money was recovered from the appellant and the amount was recovered from the other two co-accused persons. The appellant was convicted only because he had refused to join TIP and he was falsely implicated. I do not find merits in the contention raised by the appellant. A perusal of judgment would show that there was sufficient evidence apart from refusal of TIP on which trial court relied. It would not be appropriate to discuss the evidence at this stage to pre-empt the appeal. ( 2 ) THE appellant relied upon 1992 (2) CLR 148 Bhagwan Ram Shinde gosai and Ors. v. State of Gujarat and pleaded that Court should liberally suspend the sentence and suspension should be refused only in exceptional circumstances. Supreme Court in recent judgment in case Gomti v. Thakurdas and ors. 2007 Crl. L. J. 2431 observed as under: 9. 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. 10. 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. 10. 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 earlier period when the accused-respondents were on bail. 11. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of 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 is 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. 12 In Vijay Kumar v. Narender and others (2002 (9) SCC 364) and Ramji Prasad v. Rattan Kumar Jaiswal and another ( 2002 (9) SCC 366 ), 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's case (supra) 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. The above position was highlighted in Kishori Lal v. Rupa and Others [ 2004 (7)SCC 638 ] and in Vasant Tukaram Pawar v. State of Maharashtra [ 2005 (5) SCC 281 ]. ( 3 ) CONSIDERING the nature of offence and the manner in which the offence was committed, I do not think that it is a fit case for suspension of sentence. The appellant in well planned manner, with the help of co-convicts executed the robbery in dare-devil manner putting the life of victims under threat of death. The offence committed is very grave. A perusal of judgment shows that it is a reasoned judgment. The application is hereby dismissed.