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TMI Blog2020 (8) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... on that renders the order of conviction prima facie erroneous. Where there is evidence that has been considered by the Trial Court, it is not open to a Court considering application under Section 389 to re-assess and/or re-analyze the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail. From the evidence of the Prosecution witnesses, it transpires that the Appellant had spent money beyond his financial capacity, at the wedding of the victim and had even gifted an I-10 car. The hapless parents were hoping against hope that there would be an amicable settlement. Even as late as on 17.6.2010 the brother of the victim paid Rs. 2,50,000/- to the Respondent No. 2. The failure to lodge an FIR complaining of dowry and harassment before the death of the victim, is inconsequential. The parents and other family members of the victim obviously would not want to precipitate a complete break down of the marriage by lodging an FIR against the Respondent No. 2 and his parents, while the victim was alive. The impugned order of the High Court is set aside and the Respondent No. 2 is directed to surrender for being taken into custody. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alia praying that he be enlarged on bail, during the pendency of the aforesaid appeal. The said application has been allowed by the order dated 21.1.2019 under appeal. 5. The High Court recorded the submission made on behalf of the Respondent No. 2 that (i) No FIR in relation to demand for dowry or harassment had been filed before the death of the victim; (ii) the Respondent No. 2 had taken Rs. 2,50,000/- as loan from the brother of the victim and not as dowry, which was established because the brother of the victim had not been produced as a witness; and (iii) that the deceased had committed suicide which was evident from the post mortem report. The cause of death as shown in the post mortem report was asphyxia as a result of ante mortem hanging . 6. The High Court briefly recorded the submission on behalf of the State and on behalf of the Appellant and then the submission on behalf of the Respondent No. 2, in rebuttal, that the Respondent No. 2 had been framed. 7. After recording the submissions of the respective parties, the High Court passed a short, cryptic, non speaking order, under appeal before this Court, which is set out hereinbelow for convenience:- After hearing learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent No. 2 and the other accused were examined under Section 313 of the Criminal Procedure Code (CrPC). 13. The evidence adduced before the Sessions Court, has meticulously been recorded in the judgment and order dated 23.7.2018, under appeal before the High Court. The family members of the victim, who deposed before the Sessions Court, have given oral evidence that the Appellant had spent money beyond his financial capacity, for the wedding of his daughter, that is, the victim. However, soon after the marriage of the victim to the Respondent No. 2 on 12.12.2009, the victim s in-laws as well as the Respondent No. 2, her husband, harassed her mentally and physically for more dowry. 14. From the oral evidence of the victim s parents, and other family members, it transpires that the victim used to make phone calls to her mother, maternal grandmother and her aunt, complaining of harassment meted out to her by the members of her matrimonial family. There is oral evidence that the Appellant s wife used to console her by saying that things would settle down in due course. 15. From the oral evidence it also transpires that the in-laws of the victim used to pressurize the victim to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that her involvement with another boy led to the suicide and on the other hand it is suggested that she committed suicide due to mental illness. The suggestions are somewhat contradictory and in any case the suggestion of mental illness is unsupported by any evidence whatsoever. 20. Through three of the witnesses examined by the defence, namely, one Shri K.K. Pandey, Sub-Divisional Engineer, Mobile Services (Security) who deposed as the 1st Defence Witness, Shri Madhu Balusu, Nodal Officer, Reliance Communications, Gomti Nagar, Lucknow who deposed as 2nd Defence Witness, and Shri Prashant Mishra who deposed as 3rd Defence Witness, the defence made an attempt to establish the victim s involvement with the said Prashant Mishra. The evidence of the aforesaid three witnesses evinces calls from the victim s phone to the phone in the name of Prashant Mishra, and from the said phone to the phone of the victim and also exchange of some messages between the two phones. However, the said Prashant Mishra, who deposed as Defence witness said, that the phone in his name was always kept at home and used by his parents and sister. The victim was a class friend of his sister, Prachi. He did not kn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic calls complaining of torture, and expressing fear for her life. From the oral evidence, it may be reasonably inferred that she was traumatized. The same night, she died in unnatural circumstances. 24. It is not for this Court to go into the merits of the appeal pending before the High Court. Suffice it to mention that prima facie the Sessions Court has proceeded on the basis of evidence and the Respondent No. 2 has not been able to make out a case of any patent infirmity and/or illegality in the judgment and order of the Sessions Court. 25. The Short question that arises for consideration in this appeal is, whether the High Court was justified in directing release of the Respondent No. 2 on bail, during the pendency of his appeal before the High Court. 26. Section 389 provides that, pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against, be suspended and, also, if he is in confinement, that he be released on bail. Of course, in view of the mandate of Section 389(3) of the CrPC, the principles are different in the case of sentence not exceeding three years a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin 8 months of marriage. There is apparently evidence of harassment of the victim for dowry even on the day of her death, and there is also evidence of payment of a sum of Rs. 2,50,000/- to the Respondent-Accused by the victim s brother, two months before her death. 31. In Kalyan Chadra Sarkar v. Rajesh Ranjan and Anr. [(2004) 7 SCC 528] , this Court held:- 11. The law in regard to grant or refusal of bail is very well 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 merits 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. 32. Even though detailed examination of the merits of the case may not be required by courts while considering an application for bail but, at the same time, exercise of jurisdiction has to be based on well settled principles and in a judicious ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail, as mandated in Section 389(1) of the Cr.P.C. 37. In Vinod Singh Negi v. State of Uttar Pradesh and Anr. [(2019) 8 SCC 13], this Court set aside the impugned order of suspension of sentence and grant of appeal as the order was devoid of reasons. 38. It is nobody s case that the death of the victim was accidental or natural. There is evidence of demand of dowry, which the Trial Court has considered. The death took place within 7 or 8 months and there is oral evidence of the parents of cruelty and torture immediately preceding the death. There is also evidence of payment of Rs. 2,50,000/- to the Respondent-Accused by the victim s brother. The Respondent No. 2 has not been able to demonstrate any apparent and/or obvious illegality or error in the judgment of the Sessions Court, to call for suspension of execution of the sentence. 39. In considering an application for suspension of sentence, the Appellate Court is only to examine if there is such patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous. Where there is evidence that has been considered by the Trial Court, it is not open to a Court considering application under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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