1 [CASE NUMBER] The High Court Of Madhya Pradesh [CASE NUMBER] (LOKENDRA SINGH Vs THE STATE OF MADHYA PRADESH) 16 Jabalpur, Dated : 28-06-2018 Shri [ENTITY], learned counsel for the appellant. Shri [ENTITY], learned Government Advocate for the respondent/ State.
Heard on [CASE NUMBER], repeat (fifth) application for suspension of sentence and grant of bail on behalf of appellant- [ENTITY].
Earlier application was dismissed vide order dated 03.11.2014. Thereafter, another application was dismissed vide order dated 03.09.2015.
The appellant has been convicted for commission of offence punishable under [SECTION] of [ACT] and awarded life imprisonment with fine of Rs.10,000/-.
It is submitted by the learned counsel appearing on behalf of the appellant that the appellant is in jail from the date of passing of the judgment i.e. 07.02.2014. He was in jail for a period near about one year during trial. He has completed more than five years of actual jail sentence. Earlier applications were dismissed on the ground that the allegation against the appellant is that he had killed his wife, who was died in the house of the appellant, hence, it is the appellant who had committed the offence. The appellant was not present in the house at the time of incident, as deposed by PW-1. PW-1 has not been declared hostile. The family members of the deceased turned hostile. As per the evidence of the doctor, the deceased was died due to asphyxia due to compression of neck by hard and blunt object. There is no allegation that the appellant applied force. From the evidence of doctor is has not been established that how the deceased was died.
Learned counsel appearing on behalf of the State has submitted that earlier applications were dismissed after considering merits of the case. Hence, the application be rejected.
We have perused the objection and the record.
This is a fact that earlier application was dismissed on merits in the year of 2015. The appellant has completed more than five years of actual jail sentence. The Hon'ble Supreme Court in the case of [PRECEDENT] has held as under in regard to law of consideration of subsequent application for suspension of sentence:
2 [CASE NUMBER] "11. The law in regard to grant or refusal of bail is very w e l l settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course.
Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are,
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
(b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(c) Prima facie satisfaction of the Court in support of the charge; (See [ENTITY] Vs. Sudarshan Singh and others (2002 (3) SCC 598) and [PRECEDENT].
12. In regard to cases where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted. (See [ENTITY], supra)." The Hon'ble Supreme Court further in the case of [PRECEDENT] has held as under in regard to grant of bail when earlier application was rejected:
"20. The decisions given by a superior forum, undoubtedly, is binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view the guaranty conferred on a person under [SECTION] of the [ACT], it is open to the aggrieved person to make 3 [CASE NUMBER] successive bail applications even on a ground already rejected by courts earlier including the Apex Court of the country."
The principle of law is that if there is a change in fact, situation or in law which requires the earlier view be interfered, where the earlier finding has become absolute, subsequent application can be considered. In the present case, earlier application was dismissed before three years. Now, the appellant has completed actual jail sentence of five years.
PW-1 deposed that I and the appellant were threshing wheat in the field (barn). At 3 O'clock, the appellant returned back. Thereafter, appellant told me that the deceased was died. Thereafter, I informed the police about the incident. He has not been declared hostile.
The appellant in his statement recorded before the Court under [SECTION] of [ACT] deposed that when the deceased was died, he was at his field. As per the judgment of the Hon'ble Apex Court in the case of [PRECEDENT], when prosecution witness has not been declared hostile and his evidence supports the accused, then prosecution is bound by the said evidence, which amounts prosecution accepting testimony of the witness.
Same principle has been reiterated by the Hon'ble Supreme Court in the case of Raja Ram vs State of Rajasthan, reported in (2005) 5 SCC
272. Apart from this, the family members of the deceased i.e. PW-11 mother of the deceased, PW-12 sister of the deceased and PW-13 brother of the deceased turned hostile. They specifically deposed that the appellant never committed any cruelty with the deceased.
The doctor PW-17, who performed postmortem of the deceased, deposed that there was injury on left Sub mandibular region on the neck of the deceased measuring 8 cm x 6 cm. He opined that the deceased died due to asphyxia due to compression on the neck by hard and blunt object. In his cross-examination, he admitted the fact that he did not notice any ligature mark on the neck of the deceased. Neither there was any fracture of bone of the neck. He further admitted that death of the deceased was not possible due to injuries, which he noticed on the neck of the deceased and cause of death was asphyxia.
The Hon'ble Supreme Court in the case of [PRECEDENT] has held as under in regard to conviction on the basis of circumstantial evidence:
"In every case based upon circumstantial evidence, in this case as well, the question that needs to be determined is whether the circumstances relied upon by the prosecution are proved by reliable and cogent evidence and whether all the links in the chain of circumstance are complete so as to rule out the possibility of innocence of the accused. Conviction can be based 4 [CASE NUMBER] solely on the circumstantial evidence but it should be tested on the touchstone of the law relating to circumstantial evidence."
In the aforesaid case, three foreign nationals stayed in a room of a hotel and one companion was found dead in the hotel room. The Court convicted the accused persons on the basis that burden was on the accused to show that they were not in the room. The Hon'ble Supreme Court acquitted the accused persons.
In the present case, the Court has convicted the appellant on the basis that the deceased was his wife and the appellant was at the house during night. However, at the time of rejecting the earlier applications, this Court has not considered that PW-1 deposed that the appellant was at Khalihan (barn) in the night. He has not been declared hostile. As per the medical evidence, the deceased was died due to asphyxia and there were no signs of any disturbance in the room, as per the evidence of police officer, when he visited the room of the deceased.
In view of the aforesaid changed circumstances and the fact that the appellant has already undergone actual jail sentence of five years, including remission 7 years, and the decision on appeal will take time, without expressing any opinion on merits of the matter, the IA is allowed and subject to depositing the fine amount, if already not deposited, remaining jail sentence of the appellant is hereby suspended.
It is directed that on furnishing a personal bond of Rs.50,000/- along with one solvent surety of like amount to the satisfaction of trial Court, the appellant [ENTITY] be released on bail with a further direction to appear before the Registry of this Court on 07.01.2019 and on such other dates as are fixed by the office in this regard till disposal of this appeal.
C. C. as per rules.
([ENTITY]) ([ENTITY]) JUDGE JUDGE vkt Date: 2018.07.03 16:03:08 +05'30'