The court should suspend sentence under S 302 of IPC in exceptional circumstances

1. Leave granted in all the matters.

2. The present appeals arise out of the impugned order

dated 24.05.2024 passed by the High Court of Madhya

Pradesh at Gwalior Bench in Criminal Appeal No.10286 of

2023 and orders dated 10.04.2024 in Criminal Appeal

Nos.10455 of 2023 & 10286 of 2023 respectively, whereby

the High Court has allowed the applications of the

respondents – accused seeking suspension of sentence

imposed by the Trial Court for the offences under

Sections 148, 302/149 and 323/149 of IPC, pending the

said Appeals.

3. Heard learned counsel for the parties.

4. It appears that all the three respondents – accused

were convicted for the offences punishable under Sections

148, 302/149 and 323/149 of IPC and were directed by the

Trial Court, i.e., Ist ASJ to the Court of IInd ASJ,

Datia in S.T. No.103 of 2018, to undergo R.I. for life

for the offence under Section 302 and undergo other

punishments as imposed by the Trial Court. It appears

that the cross-case being S.T. No.28 of 2007 filed by the

respondents – accused against the complainant, had also

resulted into the conviction of the complainant and

others for the offence under Sections 307/149, 324/149,

148 IPC.

5. Against the judgment and order of conviction and

sentence passed against the respondents – accused, they

have preferred the appeals before the High Court, in

which they also applied for the suspension of sentence

under Section 389(1) Cr.P.C. The said applications have

been allowed by the High Court.

6. As transpiring from the impugned orders passed by

the High Court, it ex facie appears that the High Court

has not assigned any reasons while granting the

applications seeking suspension of sentence, though it is

mandatory under Section 389(1) to record the reasons

before suspending the sentence of the respondents –

accused, who have been convicted for the serious offence

under Section 302 of IPC. It is also needless to say

that the initial presumption of innocence is no more

2

available to the respondents – accused, who have been

convicted for the offences under Sections 148, 302/149

and 323/149 of IPC.

7. In our opinion, the decision of this Court in the

case of “Omprakash 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 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.

3

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 [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

302IPC, 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 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.”

8. Having regard to the aforestated settled legal

position, we are of the opinion that the High Court has

committed gross error in simply recording the submissions

of the learned counsels for the parties based on the

findings recorded by the Trial Court and suspending the

sentence pending Appeals without recording any reasons

for the same. Since these were cases of conviction under

Section 302 IPC, the initial presumption available to the

respondents – accused before conviction, would not be

available to them. The High Court could not have

suspended the sentence, re-appreciating 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 reason that the Appeals were not likely

to be heard in near future also would not be a valid

ground for suspending the sentence of the respondents –

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.

9. In that view of the matter, the impugned orders

being in the teeth of settled legal position, the same

are untenable at law and deserve to be set aside.

10. In that view of the matter, the impugned orders

passed by the High Court are set aside. The respondents

– accused are directed to surrender themselves within two

weeks from today. The Appeals are allowed.

11. Pending application(s), if any, shall stand

disposed of.

12. The High Court is requested to hear the Appeals

filed by the present respondents as well as the crossappeal(s) filed by the complainant as expeditiously as

possible.

………………….J.

 (BELA M. TRIVEDI)

………………….J.

 (PRASANNA B. VARALE)

NEW DELHI;

16TH APRIL, 2025.