Md. Akram Chowdhary, J
CrlM No. 348/2022
1. The appellant, through the medium of this composite application, seeks suspension of sentence and grant of bail pending appeal filed by him as well
as Criminal Reference received from the court of learned Principal Sessions Judge Pulwama, having been aggrieved of his conviction for the
commission of offences punishable under Section 302 and 392 RPC vide impugned judgment dated 04.02.2022 in a case No. 25/Session, titled U.T of
J&K Vs. Sameer Ahmad Sheikh & Ors. arising out of FIR No. 72/2011 registered at Police Station Pulwama.
2. The appellant herein was awarded life imprisonment under Section 302 RPC and one year rigorous imprisonment under Section 392 RPC vide
order dated 04.02.2022. Both the sentences of imprisonment were ordered to run concurrently.
3. The appellant has assailed the judgment of his conviction and sentence on many grounds. Alongside appeal, application for suspension of sentence
and grant of bail has also been moved by the appellant-convict, asserting therein that the appellant since his arrest on 11.04.2011 has been in
continuous custody and has completed 10 years and 10 months in jail, though he is a man of clean antecedents with history of not involved in any
criminal matter or case; that he has preferred an appeal against his conviction and sentence and is sure that he will succeed in the appeal; that the
entire case rests on circumstantial evidence and there is no eye witness to the alleged incident; that no independent witness has been examined by the
prosecution and all the witnesses were either relatives or close friends of the complainant except PW-18 Feroz Ahmad Sheikh, who had been
declared as hostile; that there was unexplained delay in lodging FIR; that the trial court has failed to consider whether the approver was a reliable
witness and a portion of his statement was conveniently ignored resulting in failure of justice; that there was inconsistencies in the statement of PW-19
regarding ‘last seen together’ theory; that the trial court has rejected the plea of defense with regard to identification parade, on the wrong
premise, that the accused was known to all the witnesses; that there was a long time gap between the date of last seen together and date of death
which renders the theory of ‘last seen together’ irrelevant; that the provisions of Section 342 of J&K Cr.PC pari materia to Section 313 of
Cr.P.C were observed in breach by the trial court rendering the conviction liable to be set aside. It was, therefore, prayed that having regard to the
points raised by the appellant-convict, the sentence of imprisonment is required to be suspended pending disposal of the appeal and the appellant be
granted bail.
4. Pursuant to notice, respondent filed objections resisting the plea of suspension of sentence and grant of bail in favour of the appellant, asserting
therein that the appellant has been convicted after the full dressed trial under Section 302 RPC and sentenced to imprisonment for life and one year
rigorous imprisonment for the commission of offence of robbery under Section 392 RPC; that the application deserves to be dismissed as the
presumption of innocence cannot be taken after recording of conviction by the court; that the appellant in connivance with other accused killed a
young boy who was undergoing his studies in 2nd year of Graduation. It was further submitted that the murder of an innocent young boy was
committed for robbery by Sameer Ahmad Sheikh, Javid Ahmad Shah (appellant herein) and Ab. Rashid Dar (who later on turned as approver). That
the complainant had suspected the accused in his missing complaint and on the detailed and scientific investigation, the Investigating Agency
concluded that the accused including the appellant herein had committed aforesaid offences. The trail court examined 37 out of 38 listed witnesses and
after just trial the appellant had been held guilty for serious offences of murder and robbery. It was, thus, prayed that the application seeking
suspension of sentence and grant of bail pending appeal, be rejected in the interest of justice.
5. Heard and considered.
6. Learned counsel for the appellant-convict, while reiterating the grounds pleaded, vehemently, that the conviction, recorded by the trial court, cannot
be maintained for the reason that the impugned judgment has been passed on unwarranted presumptions without appreciating the evidence in its right
perspective. He has further argued that in a case, based on circumstantial evidence, evidence has to be appreciated with great circumspection, since
such evidence has weak evidentiary value. He further submits that the appellant-convict has all chances to be acquitted by this Court at the time of
final hearing of Appeal, and that the appellant-convict having been in custody for more than a decade shall be suffering the punishment even if his
conviction is set aside by this Court while hearing the appeal finally. Learned counsel, while relying upon the latest judgment of Hon’ble Apex
Court passed in a case titled Satender Kumar Antil Vs. Central Bureau of Investigation & Anr., reported as AIR 2022 SC 3386, argued that in view
of unexplained, avoidable and prolonged delay in concluding the trial, Appeal or Revision would be the factor for consideration of bail. He further
argued that the appellant has been in continuous incarceration for the last more than a decade. Learned counsel for the appellant submitted that since
the appeal is a continuation of trial under legal fiction, therefore, inordinate delay in disposal of the case entitles the appellant to suspension of sentence
and grant of bail. He, therefore, prayed that the sentence be suspended, and as a consequence the appellant-convict be admitted to bail till disposal of
appeal.
7. Mr. Chashoo, learned AAG, on the other-hand, resisted the plea of suspension of sentence and the bail, raised by the appellant-convict, asserting
that the appellant-applicant has been convicted for heinous offences including that of murder, and that the trial court, after passing lucid judgment, has
recorded conviction of the appellant-convict, and in such a situation when the conviction has already been recorded by the trial court, the appellant-
convict cannot ask for concession of suspension of sentence and grant of bail for ‘no pressing’ reason. Mere detention of the convict, in a case
where he has been awarded life imprisonment, for more than a decade, will not entitle him to such a relief. Learned AAG finally prayed that the
application moved in this behalf may be rejected.
8. Shorn of minute details the factual background of the case is that the dead body of a person was found lying under the heap of cow dung at Muran
Pulwama on 02.04.2011, who was later on identified as Khursheed Ahmd Wani S/O Sonaullah Wani R/O Babhar Pulwama; that on the same day, a
complaint was also lodged by one Ghulam Ahmad Wani, stating therein that his grandson namely Khursheed Ahmad Wani had left his home on
25.03.2011 along-with an amount of Rs.25000/- for paying his school fee, but did not return thereafter. A case was registered vide FIR No. 72/2011 at
Police Station Pulwama under Section 302 RPC. During investigation one of the suspects namely Feroz Ahmad Sheikh stated that during the
intervening night of 30/31 March 2011, he came out of his house to meet his friend and in the process reached near a tin shed of one Abdul Rashid
Dar and heard lot of noise and screaming coming from inside the shed; that, when he peeped through one of the holes of the shed he found three
persons namely Sameer Ahmad Sheikh, Javid Ahmad Shah and Abdul Rashid Dar were fighting with a person and were demanding money from him;
that, after a huge scream, all of a sudden, calm prevailed in the shed and after some time Sameer Ahmad Sheikh came out of the shed with a dead
body on his shoulder along-with Javid Ahmad Shah (appellant herein) holding the legs of dead body, whereas the third person namely Abdul Rashid
Dar was seen carrying shoes of the dead body. All the accused were arrested on 11.04.2011. One of the accused namely Abdul Rashid Dar moved
an application before the Chief Judicial Magistrate Pulwama on 08.06.2011 to declare him as approver, which was accepted and his statement was
recorded under Section 337 of Cr.PC. On conclusion of the investigation, charge-sheet was laid against all the accused and vide order dated
19.10.2011 they were charge- sheeted for the commission of offences punishable under Sections 302, 392, 201 read with Section 34 RPC by the
Sessions Court Pulwama. The accused, on their examination, denied the charge claiming trial.
9. The trial court, after full dressed trial and examining 37 out of 38 listed witnesses and the approver, recorded conviction of Sameer Ahmad Sheikh
and Javid Ahmad Shah (appellant herein) for the commission of offence punishable under Section 302 read with Section 34 RPC and Section 392
RPC and sentenced him for life imprisonment for the commission of murder and one year rigorous imprisonment for the commission of robbery.
10. The trial court vide impugned judgment, on consideration of the circumstantial evidence, direct evidence and the medical evidence, came to the
conclusion that all the accused had common intention of grabbing money from the deceased by means whatsoever. The accused No.2 (appellant
herein) had been found consistently with the deceased immediately before his death and the deceased was killed in the tin shed of accused No.3, who
later on had turned as approver. The offences were thus, committed not only with the common intention but all the accused had also participated in the
commission of offence in furtherance of the common intention, as such, they were held liable for the commission of offences punishable under Section
302 read with 34 RPC, vide impugned judgment.
11. Since the accused Abdul Rashid Dar had been granted pardon by the court, the other accused Sameer Ahmad Sheikh was sentenced to life
imprisonment under Section 302 RPC whileas Javid Ahmad Shah (appellant herein) was sentenced to life imprisonment under Section 302 RPC
besides one year rigorous imprisonment under Section 392 RPC, and a reference was made to this Court for confirmation of the sentence so imposed
by the trial court.
12. While considering the application for suspension of sentence and grant of bail, the appellate court is not required to consider the evidence on
record meticulously lest it should affect the merits of the case while considering the main appeal. The appellate court has to consider the case just to
find out whether there is prima facie case to hold that there has been some miscarriage of justice which may be apparent on the face of the record
and in such situation the suspension of sentence can be ordered and as a consequence the appellant can be released on bail.
13. Hon’ble Apex Court in a case titled Ramji Prasad Vs. Rattan Kumar Jaiswal & Ors., reported as (2002) 9 SCC 366, held that where an
accused was found guilty by the trial court under Section 302 IPC, the normal practice in such cases is not to suspend the sentence and it is only in
exceptional cases that the benefit of suspension of sentence can be granted. In another case titled Kishori Lal Vs. Rupa & Ors., reported as 2004 (7)
SCC 638, it has been held 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, after taking into consideration relevant factors like nature of accusation, manner in which the crime is alleged to have been
committed, 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.
14. Section 426 of the J&K Cr.PC which is pari materia to Section 389 Cr.PC of 1973 deals with suspension of execution of sentence pending appeal
and release of appellant on bail. There is distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the
requirement for the appellant court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. 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.
15. So far as contention of learned counsel for the appellant that there is inordinate delay in disposal of the case finally and that this Court was taking
longer time to decide the appeal is concerned, Hon’ble Apex Court in a case titled Satender Kumar Antil Vs. Central Bureau of Investigation &
Anr., reported as AIR 2022 SC 3386, cited and relied upon by the learned counsel for the appellant, held that in a case where a person has been found
guilty of offence punishable under Section 302 IPC and sentenced for life imprisonment, the Code of Criminal Procedure affords right of appeal to
such a convict, however, a difficulty arises when the appeal preferred by such convict cannot be disposed of within a reasonable time. It has been
further held that in rationale, the practice of not suspending the sentence and granting bail have no application, where court is not in a position to
dispose of the appeal for 5/6 years and it would indeed be a travesty of justice to keep a person in jail for a period of 5/6 years for an offence which is
ultimately found not to have been committed by him. The observation of the Apex Court, thus, suggests that it has only to be after 5/6 years in case
the appeal is not disposed of, that suspension of sentence and grant of bail be considered, in a heinous case like murder.
16. In this backdrop and for limited purpose as discussed hereinabove, we are of the opinion that the appeal which was filed on 04.02.2022 cannot be
said to be pending for the last 4/5 years as required by the Hon’ble Apex Court. We are also of the opinion that the Criminal Appeals of under-
trials (life convicts) or the persons who are in custody for longer duration, will not take much of the time to be heard finally. There is no difficulty in
hearing this appeal after ministerial formalities of preparing and furnishing of paper-book to the concerned parties are completed. Since there is a
positive finding of the trial court that the case has been proved by the prosecution based on formidable, circumstantial as well as oral evidence
supported by medical and forensic evidence, therefore, appellant on his conviction cannot raise a plea of being innocent as the presumption of
innocence in the appeal is not available to the appellant as is available to an accused before the trial court.
17. For the foregoing reasons and discussions made hereinabove, we are of the considered opinion that the appellant has failed to make out a prima
facie case for suspension of sentence and grant of bail in his favour.
18. CrlM No. 348/2022 is, accordingly, rejected.
19. List the main Appeal along-with Criminal Reference on 13.10.2022.