ORDER
A.L. Dave, J.
1. The applicants are appellants in Criminal Appeal No. 2433 of 2005, who came to be tried and convicted by Fourth Fast Track Court, Surat, in Sessions Case No. 206 of 2003, decided on 13th October, 2005. The applicants have been convicted for offences punishable under Sections 302 and 302 read with Sections 34/114 of the Indian Penal Code and are sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- each, in default, to undergo further simple imprisonment for a period of fifteen days. They are also convicted for the offence punishable under Section 135 of the Bombay Police Act and are sentenced to undergo simple imprisonment for a period of four months and to pay a fine of Rs.100/- each, in default, to undergo further simple imprisonment for a period of seven days.
1.1 The appeal came to be filed on 21st November, 2005 and was admitted on 5th April, 2006. In the appeal, there was no prayer for bail. The present application was filed on 22nd November, 2005, which appears to have been listed for the first time in the month of April, 2006 and is, now, listed before this Bench according to roster.
2. As per the prosecution case, applicant No. 1 runs a video cable business in Varachha Road area of the city of Surat. On the day of the incident, i.e. on 5th October, 2003, at about 8.30 P.M., while applicant No. 1 was sitting in his office with his brother-Mukesh, and a friend-Bharat (applicants No. 2 and 3, respectively), deceased-Manoj Mavani along with Vijay and Dharmesh came to the office in connection with a previous incident that had occurred between Umesh, cousin of Manoj, and applicant No. 1-Ashok. It appears that there was some heated discussion resulting into a quarrel, wherein applicant No. 2-Mukesh is alleged to have drawn a knife from his waist-band and applicants No. 1 and 3 have taken out stick and iron road, respectively, and, ultimately, the visitors left the shop. It also appears from the evidence that the visitors were chased by the applicants. Applicants No. 1 and 3 have given blows with stick and iron road and applicant No. 2 has inflicted multiple knife injuries to deceased-Manoj. The incident was seen by witnesses, Vijay and Dharmesh. The deceased was taken to Ashaktashram Hospital, at Surat, but was declared dead. Police was informed, who arrived at the hospital and F. I. R. was lodged by Thakorebhai, uncle of the deceased. Ultimately, charge sheet was filed and the applicants were tried and have been convicted.
2.1 The applicants have moved this application under Section 389 of the Code of Criminal Procedure for suspension of sentence.
3. Applicants No. 1 and 2 are represented by learned Senior Advocate, Mr. Thakkar, appearing with Mr. Bharda. Applicant No. 3 is represented by learned Advocate, Mr. Abichandani, who says that he has instructions to file appearance in this matter and will file his appearance in due course. The State is represented by learned Additional Public Prosecutor, Mr. Prachchhak and learned Advocate, Mr. A. D. Shah, appears for the original complainant.
4. Learned Senior Advocate, Mr. Thakkar, appearing for applicants No. 1 and 2, has taken us through the relevant part of the evidence and the judgment and has emphasized that the prosecution case has wrongly been believed by the Trial Court.
4.1 Mr. Thakkar indicated that the prosecution has made necessary shifts to suit to its requirements and to implicate the applicants. He submitted that the first version in respect of the incident emerges in the history given to the doctor when the deceased was taken to Ashaktashram Hospital. History given to the doctor implicates only applicant No. 1 and that too, with a sharp edged weapon, but the weapon is not properly described. This is the first disclosure in point of time, at about 9.30 P.M. on the day of the incident. Thereafter, a Yadi was sent to Police, which is at Exhibit 87. When the information was given, eye-witness, Vijay, was present and that Yadi also implicates only applicant No. 1. Mr. Thakkar, therefore, submitted that Exhibit 87-Yadi would be the F.I.R. rather than the disclosure by Thakorebhai, which is treated as the F. I. R. by the Trial Court. Mr. Thakkar submitted that, subsequently, when Thakorebhai discloses the occurrence, he implicates the three applicants. There also, wisely he does not disclose the weapon specifically, but describes it as a sharp edged weapon. The F. I. R. also does not disclose any specific role to any of the applicants. Mr. Thakkar, therefore, submitted that the complainant has wisely kept the element of flexibility available to the prosecution. It was also pointed out by Mr. Thakkar that the F.I.R. has reached the Magistrate after two days.
4.2 It was pointed by Mr. Thakkar from the medical evidence, particularly, deposition of Dr. Agarwal, that the deceased did not have any wheel marks which can be attributed to a stick or an iron rod. Differently put, there were no injuries on person of the deceased which could be attributed to applicant No. 1 and/or applicant No. 3, who were allegedly armed with a stick and an iron pipe, respectively.
4.3 Learned Senior Advocate, Mr. Thakkar, also indicated that apart from these aspects, it is clear from evidence that the deceased along with the two witnesses had gone to the shop of applicant No. 1 without any prior notice or intimation and, therefore, they can be said to be the aggressors. It was also pointed out that the visit was in respect of an incident that had occurred between applicant No. 1 and Umesh about two months prior to the date of the present incident. It was also indicated that witness, Dharmesh, has criminal antecedents. He is involved in two cases, the first one relating to an offence punishable under Section 307 of I.P.C. and the second one for offence punishable under Section 302 of I. P. C.
4.4 Mr. Thakkar has drawn attention of this Court to paragraphs 81, 82 and 83 of the judgment and submitted that the Trial Court has recorded conviction of applicants No. 1 and 3 only on the basis of their presence. The common intention that the Trial Court has found and recorded is that the applicants may have shared a common intention of driving away the deceased and the two witnesses from the shop and, therefore, applicants No. 1 and 3 could not have been convicted for offence punishable under Section 302 read with Section 34 and/or 114 of I. P. C. It was also pointed out by learned Senior Advocate, Mr. Thakkar, that, even as per the evidence, applicant No. 2 is alleged to have drawn out a knife from his wait-band suddenly. Knowledge about applicant No. 2 carrying such a weapon cannot be presumed or attributed to applicants No. 1 and 3 and, therefore also, they cannot be said to have shared common intention.
4.5 According to Mr. Thakkar, since the incident has occurred all of a sudden, since the deceased and the two witnesses were the aggressors who went to the shop of applicant No. 1 and since the incident has roots in a stale incident that occurred about two months prior to the date of the present incident, the case, the case would not be covered by definition of murder, but can at the most be said to be a culpable homicide not amounting to murder punishable under Section 304 Part I or Part II of I. P. C.
4.6 Lastly, it was submitted by learned Senior Advocate, Mr. Thakkar, that the appeal is already admitted and the final hearing of the appeal is likely to take time and with this evidence, if the sentence imposed on the applicants is not suspended during the pendency of the appeal and if, ultimately, the appeal is allowed, the applicants would suffer irreparably in terms of deprivation of their liberty. He, therefore, submitted that the application may be allowed.
5. Learned Advocate, Mr. Abichandani, appearing for applicant No. 3 stated that he adopts the arguments advanced by learned Senior Advocate, Mr. Thakkar. He has drawn attention to deposition of P.W.5 and P.W. 6 to show the role that can be attributable to applicant No. 3. He also emphasized the last argument advanced by learned Senior Advocate, namely, deprivation of liberty of applicant No. 3 in the event the appeal is finally heard and allowed at a later stage. He, therefore, prayed for allowing this application.
6. Learned Additional Public Prosecutor, Mr. Prachchhak, submitted that the application is one under Section 389 of the Code of Criminal Procedure for suspension of sentence and, therefore, would not be covered by principles governing a bail application under Section 439 of the Code of criminal Procedure. Mr. Prachchhak submitted that the applicants have already been convicted by the Trial Court on the basis of evidence and this Court may examine the evidence and, prima facie, assess the same. Mr. Prachchhak has drawn attention of this Court to the fact that the knife used by applicant No. 2 is not an ordinary knife. It is a big knife popularly known as Rambo knife. The injuries found on person of the deceased, as emerging from the deposition of the doctor and the postmortem notes corroborate the version of the witnesses. He submitted that Applicant No. 1 has criminal antecedents and is facing prosecution therefor. He is involved in following cases:
(1) C.R. No. 427 of 1999 of Umra Police Station, for offences punishable under Sections 387, 506(2), 120-B, 451 and 423 of I. P. C.
(2) C.R. No. 374 of 1999 of Varachchha Police Station, for offence punishable under Section 365 read with Section 114 of I.P.C.
(3) C.R. No. 218 of Athwa Police Station, for offence punishable under Sections 387, 506, 120-B, 451 and 323 of I. P. C. and 25(c) of the Arms Act.
6.1 Mr. Prachchhak submitted that, if the history of the present case is seen, applicant No. 1 was granted bail by the Sessions Court, which came to be cancelled by an order of this Court, which was challenged before the Apex Court and the Apex Court did not entertain the S.L.P. So far as applicant No. 2 is concerned, he was not granted bail during the trial, whereas, applicant No. 3 was on bail during the trial. Mr. Prachchhak submitted that applicant No. 1 did not surrender within reasonable time of cancellation of his bail, but was arrested from Gir Gadhadha, after about two and a half months. He, therefore, submitted that applicant No. 1 cannot be said to be a law abiding citizen.
6.2 Mr. Prachchhak has placed reliance on two decisions of the Apex Court, one in the case of Kishori Lal v. Rupa and Ors. and the other in the case of State of Haryana v. Hasmal reported in (2004) 6 SCC 177 to contend that only in exceptional cases, sentences can be suspended in exercise of powers under Section 389 of the Code of Criminal Procedure. He, therefore, submitted that the application may be rejected.
7. In rejoinder, learned Senior Advocate for applicants No. 1 and 2 submitted that the judgments relied upon by learned Additional Public Prosecutor turn on their own facts and the principle that can be culled out from the judgments of the Apex Court would be that the Court may examine the evidence to ascertain whether the Trial Court has committed an error or not even while considering the question of suspension of sentence. It was also contended by learned Senior Advocate that the criminal antecedents shown in respect of applicant No. 1 are of the year 1999 and it appeared in an order passed in the year 2004 and the present status of those cases is not known and may not be taken as adverse to applicant No. 1. However, it is not that applicant No. 1 was not implicated in those cases. It was also submitted by learned Senior Advocate, Mr. Thakkar, that, factually, it cannot be disputed that applicant No. 1 surrendered to custody after about two and a half months from the order of the High Court cancelling the bail. But that aspect has been explained by an affidavit, where it is stated by Pushpaben Ashokbhai Vaghani that the applicant surrendered to the Trial Court on his own volition on 5th June, 2002 and he was till then pursuing his remedy before the Apex Court to challenge the order cancelling the bail and he cannot be said to be absconding.
8. Learned Advocate, Mr. Abichandani, has reiterated his request for suspending the sentence of applicant No. 3, whose role, even if the prosecution case is taken at its face value, is very limited.
9. We have taken into consideration rival side contentions. Before going into the merits of the case, we may refer to the decision of the Apex Court in the case of Kishori Lal (supra) wherein the Apex Court has, after considering several judgments, observed that the mere fact that during the trial the convicts were granted bail and that there were no allegations of misuse of liberty are not of much significance. The effect of bail granted during trial loses significance when on completion of the 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 liberty, does not per se warrant suspension of execution of sentence and grant of bail. What really would be necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and, thereafter, grant bail. Their Lordships observed that in serious offences like murder punishable under Section 302 of I. P. C., the Court should consider 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 a serious offence of murder.
9.1 We, therefore, propose to decide this application keeping these principles in mind.
10. From the paper book produced along with the application containing the evidence before the Trial Court, we find that Vijay Rameschandra Kayasth, who is the person who is said to have accompanied the deceased to the shop of applicant No. 1 at the time of the incident, is examined at Exhibit 65. Upon reading his evidence, we find that, he clearly implicates all three applicants. Active participation of all the three applicants is borne out from the deposition. It emerges that applicant No. 1 used a stick, applicant No. 2 used a knife and applicant No. 3 used an iron rod at the time of the incident.
11. On examining the medical evidence, prima facie, it is clear that injuries No. 3, 4 and 7 are attributable to hard and blunt substance like stick or iron pipe or rod. There is evidence to show that there were multiple stab and incised wounds on the person of the deceased attributable to a knife. The knife allegedly used in the incident is a knife popularly known as Rambo knife containing sharp edge on one side and grooves on the other. The total length of the knife is about 12 inches with a blade of about 7 3/4 inches.
12. The stick and the iron pipe/rod have been discovered by applicants No. 1 and 3, respectively.
13. The Trial Court has, in paragraph 32, described how the incident occurred and while considering that deposition, it is indicated that all the three applicants have actively participated in the incident.
14. In later part of the judgment, in paragraphs 81, 82 and 83, there are certain observations by the Trial Court, which may be interpreted to mean that the Trial Court came to a conclusion that there may not be evidence to show involvement of applicants No. 1 and 3 in causing hurt to the witnesses. But the observation stops there. There is no observation to show that applicants No. 1 and 3 have not caused any injury to the deceased.
14.1 It is true that the Trial Court has made some observations which may convey a meaning that mere presence of applicants No. 1 and 3 is sufficient to attract Section 34 of I. P. C. and to create vicarious liability.
15. Having examined the evidence and observations made by the Trial Court in the judgment and applying the principle laid down by the Apex Court in the case of Kishori Lal (supra), we are of the opinion that the accusation against the applicants is in respect of a serious crime. The evidence indicates that applicant No. 2 was armed with a deadly weapon like knife and inflicted multiple blows and that all the three applicants are involved in the incident, as emerging from the evidence of eye-witnesses. The contentions that the deceased and the witnesses were the aggressors; that the witness-Dharmesh has criminal antecedents; that the prosecution has made shifts from time to time to suit to its requirements; that Exhibit 87-Yadi to police would be the F. I. R., etc. would be examined at the time of final hearing of the appeal. No absurdity or perversity is shown to us nor it is gound by us which would satisfy us that here is an exceptional case, where we should exercise our powers under Section 389 of the Code of Criminal Procedure and suspend the sentence and release the applicants on bail.
16. May be Trial Court may not have worded its reasoning in an appropriate manner, but that would not abrogate the effect of the evidence which we have, prima facie, examined, which shows active participation of all the three applicants in a serious offence of murder. We are, therefore, of the view that the application does not merit acceptance.
17. We may, at this stage, also add that involvement of applicant No. 1 in three different offences is not in dispute. We do not know the exact present status of those cases, but we notice that they were offences of 1999, wherein applicant No. 1 was bailed out and, while on bail, he got involved in the present offence. This also is a relevant factor while considering question of suspension of sentence and bail, which convinces us further to reject this application. The application is, therefore, rejected.