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Patna High Court – Orders
Md. Shabbir @ Budhu Naushad @ Budhwa vs The State Of Bihar on 8 July, 2025
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.328 of 2023
Arising Out of PS. Case No.-551 Year-2017 Thana- PURNEA SADAR District- Purnia
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Md. Shabbir @ Budhu Naushad @ Budhwa, Son of Md. Shafik Ansari @
Shafo Ansari, Resident of Agha Tola, Chandi, P.S. Sadar Mufassil, District-
Purnea.
... ... Appellant/s
Versus
The State of Bihar. ... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Md Fazle Karim, Advocate
For the Respondent/s : Mr. Satya Narayan Prasad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
17 08-07-2025
Heard Mr. Md Fazle Karim, learned counsel for the
appellant and Mr. Satya Narayan Prasad, learned APP for the
Respondent-State.
2. The present appeal has been filed under Section
374 (2) read with 389 (1) of the Code of Criminal Procedure, 1973
(hereinafter referred as ‘Code’), against the judgment of
conviction dated 19.12.2020 and order of sentence dated
23.12.2020 rendered by learned 3rd Additional District & Sessions
Judge, Purnea, in Sessions Trial No. 204 of 2018, arising out of
Sadar Mufassil P.S. Case No. 551 of 2017, whereby the concerned
Trial Court has convicted the appellant for commission of the
offences punishable under Section 302, 120B and 201/34 of Indian
Penal Code and has sentenced him to undergo rigorous
Patna High Court CR. APP (DB) No.328 of 2023(17) dt.08-07-2025
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imprisonment for life and a fine of Rs.10,000/- for the offences
under Sections 302 and 120 B of the Indian Penal Code. Further,
the appellant has to undergo rigorous imprisonment for three years
for the offence under Sections 201/34 of the Indian Penal Code
and in default of payment of fine, to further undergo simple
imprisonment for one year. Both the sentences have been directed
to run concurrently.
3. Learned counsel for the appellant submits that this
Court has admitted the appeal and the appellant, at this stage,
prays for grant of bail and for suspension of sentence imposed by
the Trial Court till final disposal of the appeal.
4. Learned counsel for the appellant has supplied the
typed copy of the F.I.R. as well as deposition of the prosecution
witnesses. Learned counsel referred the same and thereafter
mainly contended that at the time of preparing the inquest report
the informant was present, despite which he did not disclose the
name of the assailants i.e. the present appellant and other accused
and there is a delay of 10 hours in registering the F.I.R. after the
inquest report was prepared. Thus, on this ground appellant be
released on bail. Learned counsel for the appellant thereafter
referred the deposition of the prosecution witnesses and contended
that there are major contradictions, omissions and improvements
in the story of the prosecution and the prosecution witnesses and,
Patna High Court CR. APP (DB) No.328 of 2023(17) dt.08-07-2025
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in fact, the prosecution has failed to prove the case against the
appellant beyond reasonable doubt, despite which the Trial Court
has convicted the appellant. Learned counsel, therefore, urged that
the appellant be released on bail and the sentence imposed by the
Trial Court be suspended.
5. At this stage, learned counsel would submit that
appellant is in custody since 17.10.2017 i.e. more than seven and
half years and the present appeal is of the year 2023 which is not
likely to be heard in near future. He, therefore, urged that the
appellant be released on bail.
6. On the other hand, learned APP for the respondent-
State has opposed the prayer for grant of bail and for suspension of
sentence of the appellant. Learned APP for the State would mainly
submit that the appellant is the husband of the deceased and, in
fact, from the deposition of the prosecution witnesses and the
documentary evidence produced by the prosecution before the
Trial Court, the prosecution has proved the case against the
appellant beyond reasonable doubt and, therefore, the Trial Court
has not committed any error while passing the impugned judgment
and order. Learned APP would further submit that the appellant
has failed to point out that his case is an exceptional case where
High Court should exercise the powers under Section 389(1) of the
Code.
Patna High Court CR. APP (DB) No.328 of 2023(17) dt.08-07-2025
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7. Learned APP, at this stage, referred the decision
passed by the Hon’ble Supreme Court on 09.04.2025 in the case of
Janardan Ray v. State of Bihar & Anr., rendered in Criminal
Appeal Nos.1892-1893 of 2025 (Arising out of SLP (Crl.)
Nos.18326-18327 of 2024). Learned APP, submits that in view of
the aforesaid decision, it is not open for this Court to pick up a few
lacunae or loopholes here or there in the case of the prosecution
and it is not open for this Court to re-appreciate the evidence.
Learned APP, therefore, urged that the request made by the
appellant for grant of bail and for suspension of sentence imposed
by the Trial Court may not be entertained.
8. We have considered the submissions canvassed by
learned Advocates appearing for the parties. We have also perused
the materials placed on record and also perused the deposition of
the prosecution witnesses as well as the evidence led by the
prosecution before the Trial Court. It is the main contention of
learned counsel for the appellant that the informant was present
when the inquest was prepared, despite which he filed the F.I.R.
after 10 hours. It is his another submission that there are major
contradictions and inconsistencies in the deposition of prosecution
witnesses and, therefore, it has been contended that the appellant
be released on bail. Another submission of learned counsel for the
appellant is that the appellant is in custody since more than seven
Patna High Court CR. APP (DB) No.328 of 2023(17) dt.08-07-2025
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and half years and the appeal is of the year 2023 which is not
likely to be heard in near future. Thus, on these grounds, request
was made to suspend the sentence by exercising powers under
Section 389(1) of the Code.
9. At this stage, we would like to refer the decision
rendered by the Hon’ble Supreme Court in the case of Janardan
Ray (supra). The Hon’ble Supreme Court in the said judgment
referred another decision rendered by the Hon’ble Supreme Court
in the case of Om Prakash Sahni v. Jai Shankar Chaudhary and
Anr., reported in (2023) 6 SCC 123. Thus, in the case of Janardan
Ray (supra), the Hon’ble Supreme Court has observed in
paragraphs 6 and 7 as under:-
“6. In our opinion, the decision of this Court in the
case of Om Prakash Sahni Vs. Jai Shankar Chaudhary
and Anr. (2023) 6 SCC 123 clinches the issue involved in
the present appeals. It has been observed while
considering the scope of Section 389 of Cr.P.C as under.:-
“30. In Kishori Lal v. Rupa [Kishori Lal v.
Rupa, (2004) 7 SCC 638], this Court has indicated the
factors that require to be considered by the courts while
granting benefit under Section 389 CrPC in cases
involving serious offences like murder, etc. Thus, it is
useful to refer to the observations made therein, which
are as follows :
(SCC pp. 639-40, paras 4-6)
“4. 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 against. If he is in confinement, the said court
Patna High Court CR. APP (DB) No.328 of 2023(17) dt.08-07-2025
6/9can 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.
5. 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.
6. 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.”
31. In Vijay Kumar v. Narendra [Vijay Kumar
v. Narendra, (2002) 9 SCC 364] and Ramji Prasad v.
Rattan Kumar Jaiswal [Ramji Prasad v. Rattan Kumar
Jaiswal, (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. In Vijay Kumar
v. Narendra [Vijay Kumar v. Narendra, (2002) 9 SCC
364], 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
Patna High Court CR. APP (DB) No.328 of 2023(17) dt.08-07-2025
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committing the serious offence of murder.
32. The aforesaid view is reiterated by this
Court in Vasant Tukaram Pawar v. State of
Maharashtra [Vasant Tukaram Pawar v. State of
Maharashtra, (2005) 5 SCC 281] and Gomti v.
Thakurdas [Gomti v. Thakurdas, (2007) 11 SCC 160].
33. Bearing in mind the aforesaid principles of
law, the endeavour on the part of the court, therefore,
should be to see as to whether the case presented by the
prosecution and accepted by the trial court can be said
to be a case in which, ultimately the convict stands for
fair chances of acquittal. If the answer to the abovesaid
question is to be in the affirmative, as a necessary
corollary, we shall have to say that, if ultimately the
convict appears to be entitled to have an acquittal at the
hands of this Court, he should not be kept behind the
bars for a pretty long time till the conclusion of the
appeal, which usually takes very long for decision and
disposal. However, while undertaking the exercise to
ascertain whether the convict has fair chances of
acquittal, what is to be looked into is something
palpable. To put it in other words, something which is
very apparent or gross on the face of the record, on the
basis of which, the court can arrive at a prima facie
satisfaction that the conviction may not be sustainable.
The appellate court should not reappreciate the evidence
at the stage of Section 389 CrPC and try to pick up a
few lacunae or loopholes here or there in the case of the
prosecution. Such would not be a correct approach.”
7. Having regard to the aforestated settled legal
position, we are of the opinion that the High Court has
committed gross error in appreciating the evidence
already appreciated by the Trial Court at the time of
considering the applications seeking suspension of
sentence pending the appeal. Since this was a case of
conviction under Section 302 IPC, the initial presumption
available to the accused before conviction, would not be
available to him. The High Court could not have
suspended the sentence, reappreciating the evidence at the
stage of Section 389 and trying to pick up a few lacunae
or loopholes here or there in the case of prosecution. The
consideration of High Court to the submission made on
behalf of the accused that he had not misused the liberty
during the trial or that the appeal was not likely to be
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heard in near future, could not be said to be the proper
consideration for suspending the sentence of the accused,
who have been convicted for the serious offence under
Section 302, IPC. It is only in rare and exceptional
circumstances, the benefit of suspension of sentence
should be granted by the appellate court to the accused
convicted for the serious offence under Section 302, IPC.”
10. Thus, from the aforesaid observation made by the
Hon’ble Supreme Court in the case of Janardan Ray (supra), it can
be said that High Court cannot re-appreciate the evidence at the
stage of Section 389(1) of the Code and try to pick up a few
lacunae or loopholes here or there in the case of prosecution. It
has been further observed that the appeal is not likely to be heard
in near future cannot be a ground for suspending the sentence of
the accused who have been convicted for the serious offence under
Section 302 of the Indian Penal Code. The Hon’ble Supreme Court
has further held that it is only in rare and exceptional
circumstances, the benefit of suspension of sentence should be
granted by the Appellate Court to the accused convicted for the
serious offence under Section 302 of the Indian Penal Code.
11. Keeping in view the aforesaid decision rendered
by the Hon’ble Supreme Court in the case of Janardan Ray
(supra), if the facts of the present case as well as the submission
canvassed by the learned counsel for the appellant are examined,
we are of the view that the appellant has failed to point out that his
case is an exceptional case wherein this Court has to exercise
powers under Section 389(1) of the Code. This Court cannot re-
Patna High Court CR. APP (DB) No.328 of 2023(17) dt.08-07-2025
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appreciate the entire evidence of the prosecution and try to find out
lacunae in the case of prosecution here or there. Further, the fact
that present appeal is of the year 2023 which is not likely to be
heard in near future is also not a relevant ground for releasing the
appellant on bail.
12. Looking to the aforesaid facts and circumstances
of the present case, we are of the view that this is not a fit case in
which this Court has to exercise the powers under Section 389 (1)
of the Code.
13. Accordingly, the request made by the appellant for
grant of bail and for suspension of sentence is rejected.
(Vipul M. Pancholi, J)
(Sunil Dutta Mishra, J)
ritik/rajiv-
U T
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