Patna High Court
Chandeshwar Das @ Baba Ji @ Baba Jee vs The State Of Bihar on 2 July, 2025
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No. 1377 of 2024
Arising Out of PS. Case No.-194 Year-2020 Thana- SAMASTIPUR District- Samastipur
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Chandeshwar Das @ Baba Ji @ Baba Jee, Son of Anandi Das @ Annadi Das,
Resident of Village - Bhamrupur, P.S. - Muffasil, District - Samastipur
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Rana Sanjay, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
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CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 02-07-2025
Heard Mr. Rana Sanjay, learned Advocate for the
appellant and Mr. Dilip Kumar Sinha, 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’), wherein the appellant has
challenged the judgment of conviction dated 30.09.2024 and
order of sentence dated 07.10.2024 rendered by learned District
and Additional Sessions Judge-IV, Samastipur in Sessions Trial
102 of 2021, arising out of Samastipur Town P.S. Case No. 194
of 2020, whereby the concerned Trial Court has convicted the
Patna High Court CR. APP (DB) No. 1377 of 2024 dt.02-07-2025
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appellant for commission of the offences punishable under
Section 302 of Indian Penal Code and 27 of the Arms Act and
has sentenced him to undergo rigorous imprisonment for life
and a fine of Rs. 20,000/- for the offence under Section 302 of
Indian Penal Code and in default of payment of fine to further
undergo rigorous imprisonment for six months. He has been
sentenced to undergo rigorous imprisonment for three years for
the offence punishable under Section 27 of the Arms Act. Both
the sentences have been directed to run concurrently.
3. Learned counsel for the appellant would submit
that this Court has admitted the appeal and, at present, learned
counsel for the appellant prays for grant of bail and for
suspension of sentence imposed by the Trial Court.
4. Learned counsel for the appellant has supplied
the copy of the deposition of the prosecution witnesses and
referred the same. Thereafter, he would mainly contend that in
the present case though the informant, who is the mother of the
deceased, has projected herself as eye-witness, in fact, from the
evidence led by the prosecution, it transpires that P.W. 1
(informant) is not an eye-witness to the occurrence in question.
Learned counsel has mainly placed reliance upon paragraphs 5
and 6 of the deposition of the said witness.
Patna High Court CR. APP (DB) No. 1377 of 2024 dt.02-07-2025
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5. Learned counsel submits that there are major
contradictions and inconsistencies in the deposition of the
prosecution witnesses. Learned counsel for the appellant,
thereafter, referred to deposition given by P.W. 2, investigating
officer, who has conducted the investigation. It is submitted
that from paragraphs 9 to 13 of the cross-examination of the
said witness, it is revealed that in the CCTV footage as narrated
by the said witness from the place of occurrence, it has been
noticed that the informant and her daughter-in-law came from
the house to the place of occurrence after the accused fled away
from the place of occurrence. It is further submitted that the
investigating officer has also stated that the present appellant
was not seen in the CCTV footage. Learned counsel, on the
basis of the aforesaid evidence led by the prosecution has
mainly contended that the prosecution has failed to prove the
case against the appellant beyond reasonable doubt, despite
which the Trial Court has convicted the appellant and, therefore,
this Court may release the appellant on bail and the sentence
imposed by the Trial Court be suspended.
6. On the other hand, learned APP for the
respondent-State has vehemently opposed the prayer for grant of
bail and suspension of sentence of the appellant. Learned APP
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for the State has also referred the deposition of the prosecution
witnesses and, thereafter, contended that, in fact, the informant
is the eye-witness of the occurrence in question and she has
narrated in detail in her examination-in-chief with regard to the
manner of occurrence. In fact, she has identified the accused
including the appellant. It is further submitted that from the
deposition given by P.W. 3, the doctor, who had conducted post-
mortem on the dead body of the deceased, it is revealed that the
deceased sustained 14 bullet injuries and, therefore, the
deceased was killed in a brutal manner.
7. Learned APP for the respondent-State, thereafter,
has referred the written objection filed on behalf of the
respondent-State. It has been pointed out from Annexure-2 of
the said written objection that other four FIRs have been filed
against the present appellant and, thus, when the appellant is
having antecedents, he may not be released on bail, otherwise,
he will indulge into similar type of activity again. Learned APP,
therefore, urged that the request for bail and for suspension of
sentence 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 including the deposition
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of the prosecution witnesses. From the submission canvassed by
the learned counsel for the appellant, it transpires that the
learned counsel has mainly contended that there are major
contradictions and inconsistencies in the deposition of the
prosecution witnesses. As per his submission, the informant is
not an eye-witness and for that purpose he has placed reliance
upon some of the paragraphs of the cross-examination of the
said witness.
9. Similarly, learned counsel for the appellant has
also placed reliance upon the deposition given by P.W. 2,
investigating officer. From some of the paragraphs of his cross-
examination, learned counsel has tried to submit that, in fact, the
informant is not an eye-witness and the appellant was not
present at the place of occurrence.
10. We are of the view that while considering the
prayer under Section 389 of the Code of Criminal Procedure for
suspension of sentence, this Court cannot re-appreciate the
entire evidence in detail and thereby tried to find out certain
loopholes on the part of the prosecution. It is not open for this
Court to pick up the lacunae or loopholes here or there in the
case of the prosecution.
11. At this stage, we would like to refer the recent
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decision rendered by the Hon’ble Supreme Court dated 9th April
2025 in the case of Janardan Ray Vs. The State of Bihar &
Anr. ETC. rendered in Cr. Appeal Nos. 1892-1893 of 2025
arising out of SLP (Crl.) Nos. 18326-18327 of 2024. In the said
case, the Hon’ble Supreme Court has placed reliance upon
another reported decision rendered in the case of Om Prakash
Sahni Vs. Jai Shankar Chaudhary and Anr., reported in
(2023)6 SCC 123. The Hon’ble Supreme Court has observed in
the case of Janardan Ray (Supra) 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
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
Patna High Court CR. APP (DB) No. 1377 of 2024 dt.02-07-2025
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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
committing the serious offence of murder.
32. The aforesaid view is reiterated by this
Court in Vasant Tukaram Pawar v. State of
Patna High Court CR. APP (DB) No. 1377 of 2024 dt.02-07-2025
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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
heard in near future, could not be said to be the proper
consideration for suspending the sentence of the accused,
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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.”
12. The Hon’ble Supreme Court, in the case of
Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi)
reported in (2008) 5 Supreme Court Cases 230, has observed in
paragraph nos. 28 to 30 and 33 as under:-
“28. In Kashmira Singh, this Court stated;
(SCC pp. 292-39, para 2)
“2. …Now, the practice in this Court as also
in many of the High Court has been not to release on bail
a person who has been sentenced to life imprisonment for
an offence under Section 302 of the Indian Penal Code.
The question is whether this practice should be departed
from and if so, in what circumstances. It is obvious that no
practice howsoever sanctified by usage and hallowed by
time can be allowed to prevail if it operates to cause
injustice. Every practice of the Court must find its ultimate
justification in the interest of justice. The practice not be
release on bail a person who has been sentenced to life
imprisonment was evolved in the High Courts and in this
Court on the basis that once a person has been found
guilty and sentenced to life imprisonment, he should not
be let loose, so long as his conviction and sentence are not
set aside, but the underlying postulate of this practice was
that the appeal of such person would be disposed of within
a measurable distance of time, so that if he is ultimately
found to be innocent, he would not have to remain in jail
for an unduly long period. The rationale of this practice
can have no application where the Court is not in a
position to dispose of the appeal for five or six years. It
would indeed be a travesty of justice to keep a person in
jail for a period of five or six for an offence which is
ultimately found not to have been committed by him. Can
the Court ever compensate him for his incarceration
which is found to be unjustified? Would it be just at all for
the Court to tell a person:
“We have admitted your appeal because we
Patna High Court CR. APP (DB) No. 1377 of 2024 dt.02-07-2025
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have no time to hear your appeal for quite a few years
and, therefore, until we hear your appeal, you must
remain in jail, even though you may be innocent?” What
confidence would such administration of justice inspire in
the mind of the public? It may quite conceivably happen,
and it has in fact happened in a few cases in this Court,
that a person may serve out his full term of imprisonment
before his appeal is taken up for hearing. Would a judge
not be overwhelmed with a feeling of contrition while
acquitting such a person after hearing the appeal? Would
it not be an affront to his sense of justice? Of what avail
would the acquittal be to such a person who has already
served out his term of imprisonment or at any rate a
major part of it? It is therefore, absolutely essential that
the practice which this Court has been following in the
past must be reconsidered and so long as this Court is not
in a position to hear the appeal of an accused within a
reasonable period of time, the Court should ordinarily,
unless there are cogent grounds for acting otherwise,
release the accused on bail in cases where special leave
has been granted to the accused to appeal against his
conviction and sentence”. (emphasis supplied)
29. The other consideration, however, is
equally important and relevant. When a person is
convicted by an appellate Court, he cannot be said to be
an `innocent person’ until the final decision is recorded by
the superior Court in his favour.
30. Mr. Gopal Subramanyam, learned Addl.
Solicitor General invited our attention to Akhilesh Kumar
Sinha v. State of Bihar, (2000) 6 SCC 461, Vijay Kumar v.
Narendra & Ors., (2002) 9 SCC 364, : JT 2004 Supp (1)
SC 60, Ramji Prasad v. Rattan Kumar Jaiswal & Anr.,
(2002) 9 SCC 366, State of Haryana v. Hasmat, (2004) 6
SCC 175, Kishori Lal v. Rupa & Ors., (2004) 7 SCC 638
and State of Maharashtra v. Madhukar Wamanrao
Smarth, (2008) 4 SCALE 412. In the above cases, it has
been observed that once a person has been convicted,
normally, an appellate Court will proceed on the basis
that such person is guilty. It is no doubt true that even
thereafter, it is open to the appellate Court to suspend the
sentence in a given case by recording reasons. But it is
well settled, as observed in Vijay Kumar that in
considering the prayer for bail in a case involving a
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IPC, the Court should consider all 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, the desirability of
releasing the accused on bail after he has been convicted
for committing serious offence of murder, etc. It has also
been observed in some of the cases that 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.
33. On the facts and in the circumstances of
the case, in our considered opinion, this is not a fit case to
exercise power under Section 389 of the Code. Though the
trial Court has acquitted the applicant-accused for the
offences with which he was charged, the High Court
reversed the order of acquittal and convicted him under
Section 302, IPC and ordered him to undergo rigorous
imprisonment for life. Being aggrieved by the said order,
he has filed an appeal which has been admitted, is already
on board and awaits final hearing. Hence, within
`measurable distance of time’ the appeal is likely to be
heard. Keeping in view the seriousness of offence, the
manner in which the crime was said to have been
committed and the gravity of offence, we are of the view
that no case has been made out by the applicant-
appellant for suspension of sentence and grant of bail.
The application deserves to be dismissed and is
accordingly dismissed.
13. Thus, from the aforesaid decisions rendered by
the Hon’ble Supreme Court, it can be said that it is not open for
the High Court to pick up a few lacunae or loopholes here or
there in the case of prosecution at the stage of considering
requests made under Section 389 of the Code. It is not open for
this Court to re-appreciate the evidence at the stage of Section
389 of the Code. Further, it is clear from the observation made
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by the Hon’ble Supreme Court in both the aforesaid cases that
while considering the prayer for bail in a case involving a
serious offence like murder punishable under Section 302 of the
IPC, the Court should consider all the relevant factors like the
nature of accusations made against the accused, the manner in
which the crime is alleged to have been committed and the
gravity of offence, the desirability of releasing the accused on
bail after he has been convicted for committing serious offence
of murder. Further, 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 IPC.
14. Keeping in view the aforesaid decisions
rendered by the Hon’ble Supreme Court, we have considered
the submissions canvassed by the learned counsels appearing for
the parties. We have considered the nature of offence and the
manner in which the incident took place. From the post-mortem
report, as observed hereinabove, it is revealed that total 14 bullet
injuries have been sustained by the deceased. Thus, in brutal
manner, the deceased was killed by the assailants.
15. Learned counsel for the appellant has failed to
point out that the present is an exceptional case in which this
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Court has to exercise powers under Section 389 (1) of the Code.
16. It is also required to be observed at this stage
that it is specific case of the prosecution in the written objection
with details that there are four FIRs registered against the
appellant. The appellant has not filed any counter to the said
written objection filed on behalf of the State. Thus, we have
considered the antecedents of the appellant also while
considering his prayer for grant of bail or for suspension of
sentence.
17. Looking to the aforesaid facts and
circumstances of the present case, we are of the view that the
present is not the fit case in which this Court should exercise the
powers under Section 389 (1) of the Code.
18. 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)
khushbu/-
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