Sushil & Anr vs State on 6 September, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

D.B. Criminal Stay No. 1452 / 2017

1. Sushil S/o Subhkaran, By Caste Jangir

2. Sunita D/o Subhkaran, By Caste Jangir, Both Resident of D-
150, Sarswati Nagar, Police Station Basani, Jodhpur.

—-Petitioners

Versus

State of Rajasthan

—-Respondent

__

For Petitioner(s) : Mr. Mahesh Bora, Sr. Advocate assisted by
Mr. Nishant Bora

For Respondent(s) : Mr. Vishnu Kachhawaha, PP

Mr. J Gehlot
__

HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS

HON’BLE MR. JUSTICE MANOJ KUMAR GARG

Order

Per Hon’ble Mr. Justice Gopal Krishan Vyas

Date of order :: 6th Sept., 2017

The instant cr. stay application has been filed under Section

482 Cr.P.C. seeking stay over conviction of the applicants in

pending D.B. Cr. Appeal No.501/2017 filed against the judgment

dated 3.4.2017 whereby the learned trial court convicted the

applicants for the offence under Sections 304B and 498A IPC and

following sentence was passed against the applicants:

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Under Section 304B IPC Life imprisonment with fine of
Rs.10,000/- and default of
payment of fine to further
undergo six months
imprisonment

Under Section 498A IPC Three years imprisonment with
fine of Rs.1,000/- and in default
of payment of fine to further
undergo 10 days imprisonment
All the sentences were ordered to
run concurrently.

As per facts stated in the application, the applicant no.1

Sushil is brother-in-law and applicant no.2 Sunita is sister-in-law

of the deceased Poonam. The applicants were convicted under

Section 304B and 498A IPC for the offence of murder of deceased

Poonam alongwith her husband Sunil, Subhkaran and Smt. Mani.

Learned counsel for the applicant submits that in D.B. Cr.

Appeal No.501/2017, an application was filed by the applicants for

suspension of sentence was accepted and vide order dated

12.4.2017 passed in D.B. Cr. Suspension of Sentence Application

No.366/2017 their sentences were suspended, but instant

application has been filed for staying conviction also on the ground

that there is no evidence in the entire case against the applicants,

therefore, it is obvious that they have been erroneously convicted

by the learned trial court.

Learned counsel for the applicant submits that applicant

Suhsil was appointed on the post of Scientist (B) in Ministry of

Electronics and Information Technology, Government of India

during the pendency of criminal case on 26.8.2014 on probation.

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Subsequently, he was confirmed on 26.8.2015. According to

learned counsel for the applicant submits that the applicants are

working diligently and possession degree of Bachelor in Electronics

and Communication from Rajasthan University in the year 2009

and also acquired diploma course in Embedded System Design

and further acquired M.Tech. Degree from the University of

Verdhman University in the Electronics and Communication

Engineer in the year 2013. Therefore, as per the applicants’

counsel Sushil is having outstanding academic carrier but due to

conviction awarded by the learned trial court under Section 304B

and 498A IPC he is suffering irreparable loss of future, therefore,

it is prayed that conviction may kindly be stayed. For applicant

no.2 Sunita who is sister-in-law of the deceased, it is submitted

that she was appointed on the post of Junior Engineer w.e.f.

25.6.2010 in Rajasthan Rajya Vidyut Utpadan Nigam Ltd. and

performing her duties diligently since her appointment. She was

provided appointment on the basis of degree of Bachelor in

Mechanical Engineering in the year 2009 from the University of

Rajasthan and she is bright student through having good

academic carrier. The incident in which she has been convicted

was in her early 20s and she had no relation in connection with

demand of dowry and any harassment with the deceased wife of

his brother because at that time, she was pursing her study in the

engineering college. In the application only these grounds are

incorporated for staying conviction.

The learned Senior Advocate sh. Mahesh Bora vehemently

argued that for the purpose of staying conviction the court can see
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the merit of the case and if it is found that it is a case in which

conviction can be stayed, even after taking into consideration the

entire evidence then such jurisdiction can be exercised by the

court so as to stay the conviction.

The crux of the argument of learned senior counsel is that

conviction is based upon presumption and surmises, which is

evident from the fact that there is no evidence of demand of

dowry by the applicants, therefore, on the basis of their academic

qualification and further and evidence of the case, the conviction

may kindly be stayed. In support of his arguments, the learned

counsel for the applicants invited our attention towards following

judgments:

1. Sheo Parsan Dubey Vs. State of Bihar, Cr. Appeal
No.1218/2008, decided on 8.9.2010

2. Jasminder Kaur Vs. State of Punjab,, Cr. Misc. Nos.

22607 and 41116 of 2006 in Cr. Appeal No.81-SB of
2000, decided on 18.7.2006

3. Ram Singh ors. Vs. State of Haryana, Cr.

Miscellaneous No.69340 of 2006, decided on 12.2.2007

4. Vijay Lal Vs. State of Rajasthan, S.B. Cr. Misc. Stay
Application No.1964/2012, decided on 28.1.2013

5. Amar Singh Vs. State of Rajasthan, Cr. Appeal
No.1411/2010, decided on 3.8.2010

6. Smt. Yamuna Devi Ors. Vs. State of Bihar, Cr. Appeal
No.416/2014, decided on 3.11.2015

7. Rama Narang Vs. Ramesh Narang Ors, (1995) 2 SCC
513

8. Vijay Saxena Vs. State of Rajasthan, D.B. Cr. Misc.

Application No.810/2007, decided on 5.11.2007

9. Rabindra Pandit Anr. Vs. State of Bihar, Cr. Appeal
No.1113/2011, decided on 24.2.2012

The learned counsel for the complainant and the learned

Public Prosecutor vehemently opposed the prayer to stay the

conviction on the ground that future of brilliant student is
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involved for deciding the question to stay the conviction finding

can be required to be assessed finally and, thereafter, the

adjudication can be made and, during pendency of the criminal

appeal against conviction and sentence, there is no question to

stay the conviction on the ground of future carrier and upon the

fact that sentence is suspended during the pendency of the

criminal case. It is also argued that the Hon’ble Supreme Court

held that the ground of future carrier and service should not be a

ground for staying the conviction of an accused and further held

that before final adjudication, no court can presume that accused

will be acquitted ultimately in the case so as to grant the relief to

stay the conviction. The argument of the learned Public

Prosecutor and complainant is that still there is pendency of

appeal against the conviction and sentence, therefore, even if

during the pendency of criminal case, the applicants obtained

employment, they had no right to claim stay over conviction on

the ground that they will suffer irreparable loss if the conviction

will not stayed. In support of his arguments, learned Public

Prosecutor invited our attention towards the following judgments:

1. Shyam Narain Pandey Vs. State of Uttar Pradesh, reported
in 2014 (Suppl.), Cr.L.R. (SC) 191

2. State of Punjab Vs. Deepak Mattu, reported in 2008 Cri. L.J.
322

3. Om Prakash Vs. State of Rajasthan, reported in 2008 Cri.
L.J. 4285

4. State of Punjab Vs. Navraj Singh, reported in 2008 Cri. L.J.
3864

5. Murarilal Meena Anr. Vs. State of Rajasthan through PP
reported in 2017 Crl. L.J. 2104
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After hearing learned counsel for the parties, we have

considered the arguments advanced by the learned Senior

Advocate Sh. Mahesh Bora in support of the applicants’ plea, so

also, grounds taken by the learned Public Prosecutor as well as

learned counsel for the complainant to reject the prayer of the

applicants to stay the conviction.

Admittedly, both the applicants were accused in the criminal

case no.115/2013. The allegations were also revealed against

them in the FIR, therefore, after investigation, charge-sheet was

filed and after full-fledged trial, the applicants were also held

guilty for commission of offence under Section 304B and 498A IPC

and punishment is awarded to them. There is no dispute that

during the pendency of the criminal case, so also, in this appeal,

the application for suspension of sentence was accepted and

applicants were enlarged on bail, but appeal is still pending

against them.

There is no dispute of the fact that applicant no.1 Sushil was

selected for the post of Scientist-B in the Ministry of Electronic,

Information and Technology and appointed with effect from

26.8.2014 by the Government of India. Initially he was

appointed on probation and subsequently he was confirmed.

Whether he is performing duties diligently or not, there is no

evidence on record, but it is one of the fact which is pleaded by

the applicant for consideration. Similarly, the applicant no.2

Sunita, sister-in-law of the deceased was appointed on the post of

Junior Engineer w.e.f. 25.6.2010 in Rajasthan Rajya Vidyut

Utpadan Nigam Ltd (RRVUNL) and as per her contention in the
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application, she is performing her duties diligently since her

appointment. The said appointment was made in her favour

because he is possessing Bachelor Degree in Engineering and

Mechanical from University of Rajasthan and having good

academic career but fact remains that whether on these grounds

or to continue in service, both the applicants are entitled for any

relief to stay the finding of conviction. In this regard, some

judgment are citied by the applicants.

In the case of Rama Narang Vs. Ramesh Narang Ors

reported in (1995) 2 SCC 513, the Hon’ble Supreme Court gave

following verdict in paras nos.19 and 20, which reads as under:-

“19.That takes us to the question whether the scope
of Section 389(1) of the Code extends to conferring
power on the Appellate Court to stay the operation of the
order of conviction. As stated earlier, if the order of
conviction is to result in some-disqualification of the
type mentioned in Section 267 of the Companies Act we
see no reason why we should give a narrow meaning to
Section 389(1) of the Code to debar the court from
granting an order to that effect in a fit case. The appeal
under Section 374 is essentially against the order of
conviction because the order of sentence is merely
consequential thereto; albeit even the order of sentence
can be independently challenged if it is harsh and
disproportionate to the established guilt. Therefore,
when an appeal is preferred under Section 374 of the
ode the appeal is against both the conviction and
sentence and therefore, we see no reason to place a
narrow interpretation on Section 389(1) of the Code not
to extend it to an order of conviction. Although that issue
in the instant case recedes in the background because
High Courts can exercise inherent jurisdiction under
Section 482 of the Code if the power was not to be found
in Section 389(1) of the Code. We are, therefore, of the
opinion that the Division Bench of the High Court of
Bombay was not right in holding that the Delhi High
Court could not have exercised jurisdiction under Section
482 of the Code if it was confronted with a situation of
there being no other provision in the (lode for staying
the operation of the order of conviction. In a fit case if
the High Court feels satisfied that the order of conviction
needs to be suspended or stayed so that the convicted
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persons does not suffer from a certain disqualification
provided for in any other statute, it may exercise the
power because otherwise the damage done cannot be
undone; the disqualification incurred by Section 267 of
the Companies act and given effect to cannot be undone
at a subsequent date if the conviction is set aside by the
Appellate Court. But while granting a stay of suspension
of the order of conviction the Court must examine the
pros and cons and if it feels satisfied that a case is made
out for grant of such an order, it may do so and in so
doing it may, if it considers it appropriate, impose such
conditions as are considered appropriate to protect the
interest of the shareholders and the business of the
company.

20. For the above reasons we are of the opinion that
since the interim order of stay did not specifically extend
to the stay of conviction for the purpose of avoiding the
disqualification under Section 267 of the Companies Act,
there is no substance in the appeal and the appeal is,
therefore, dismissed. The appellant will pay the costs of
this appeal which is quantified at Rs. 25,000/-.”

In the aforesaid judgment the Hon’ble Supreme Court held

that there is no reason why narrow meaning to Section 389(1) of

the Code should be given to debar the court from granting an

order to that effect in a fit case, but rejected the appeal.

In the case of Sheo Parsan Dubey Vs. State of Bihar (Cr.

Appeal No.1218/2008), decided on 8.9.2010, the Division Bench

of the Bihar High Court while considering the application filed by

the accused to stay the conviction in a criminal appeal filed by the

appellant Sheo Parsan Dubey against the conviction for the

offence under Section 302 and 120B IPC held that:

“Considering the facts of the present case, in which
the appellant has no criminal antecedent, there is no
direct involvement of this appellant in commission of
the offence, his role is of a conspirator and there is no
sufficient evidence on the point of conspiracy, his case
can be considered for suspension of conviction. The
special ground in the case of this appellant is that he
has incurred disqualification for remaining in service
on account of his conviction. Because of this
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disqualification, he has been dismissed from his
service and he can be reinstated only when conviction
is stayed.

In the special circumstances, which is applicable
in the present case, we are of the view that order of
conviction as well as sentence passed against the
appellant in Sessions Trial no.210 of 2005/44 of 2006
is suspended till the disposal of the Criminal Appeal
NO.1218 of 2008.

This Interlocutory Application is allowed.”

The aforesaid order loudly speaks that at the time of passing

an order upon application for suspension of sentence, the order to

stay conviction can be passed.

In case of Vijay Saxena Vs. State of Rajasthan (D.B. Cr.

Misc. Application No.810/2007 in D.B. Cr. Appeal No.1590/2007),

decided on 5.11.2007, the Division Bench of this Court while

deciding the application to stay the conviction held as under:-

“Coming to the case on hand it may be noticed that
the appellant has been convicted under Section 302
with the aid of Section 34 IPC. The sentence awarded
to appellant has already been suspended and now in
view of the order of conviction of the learned trial
court, the Director General Prisons terminated the
services of the appellant under Rule 19 of the CCA
Rules. It appears to us on record that the appellant is
a physically handicapped person, his wife is cronic
heart patient and appellant has to perform marriages
of his three daughters and because of the loss of
employment the appellant and his family have to
suffer untold hardships. The order of conviction has
already been executed it is necessary to issue the
appropriate directions. We, therefore, in the interest
of justice suspend the order of during the pendency of
the appeal and directed that the order of conviction in
so far it relates to appellant shall remain suspended
till the disposal of criminal appeal. We also stayed the
order dated September 6, 2007 passed by Director
General Prisons, Rajasthan, Jaipur under rule 19 of the
CCA Rules and direct that appellant Vijay Saxena shall
be taken back in service forthwith.

Resultantly, we allow the application.”

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In case of Rabindra Pandit Anr. Vs. State of Bihar (Cr.

Appeal (DB) No.1113/2011), decided on 24.2.2012, rendered by

the Patna High Court while considering the merit of the case, the

application for suspension of sentence was allowed while giving

following finding:

“In our view, the true test would be whether
subject to the facts and circumstances of the criminal
case as obtaining against the person, if the
conviction is not stayed would the person suffer
irreparable loss and injury? If the person does not
suffer irreparable loss and injury then normally the
conviction is not to be stayed.

Coming to the facts of this case. Firstly, even the
trial court has found this applicant to be guilty under
Section 302 with the aid of Section 34 of IPC only.
There are prosecution witnesses who deposed that he
was named on suspicion. There is no overt act alleged
or established against him. He stated on oath that he
has no other criminal antecedents. Noticing this,
when the appeal was admitted, he was granted bail by
this court in terms suspending the sentence. Now he
states that being the eldest member in the family and
the only member who is entitled to compassionate
appointment, if conviction is not stayed, he will not
get the compassionate appointment and not only he
but his whole family which includes minor brothers
and sister, apart from widow mother, would suffer
irreparable injury.

Upon consideration of the aforesaid facts and
circumstances, we are of the considered opinion that it
is a fit case to save the applicant/appellant from
irreparable loss or injury, the conviction be stayed.
This would of course be subject to the condition that
this appellant/applicant makes a full disclosure of
these facts before the appropriate authority who are
to consider his compassionate appointment and such
appointment, if is to be made, would be made subject
to the result of this criminal appeal in relation to the
appellant/applicant.”

While citing all above cases, it is argued that both the

applicants are having brilliant career and they have been falsely

roped in the criminal case without any evidence and if the
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conviction will not be stayed then they will lose their service as

well as whole career.

The division bench of this court in case of Om Prakash Vs.

State of Rajasthan reported in 2008 Cr.L.J. 4285 held that for

suspension of conviction during the pendency of the appeal

though court can exercise discretionary powers, but special

reasons must exists and dismissed the application filed by the

applicant while considering number of judgments of the Hon’ble

Supreme Court. The paras nos.19 to 21 of the said judgments are

as follows:

“18. The discretion has been given to the court to
suspend the conviction so that in a fit case and where
special reasons exist the court can suspend the
conviction. So far as other reasons given for
suspension of conviction in the present case is
concerned, the reasons given in the application are
that the applicant’s service career was good and his
family circumstances warrants that conviction Om
Prakash vs State Of Rajasthan on 25 March, 2008
should be stayed because there is nobody to support
the applicant’s family. However, in the application
there are no material facts with respect to the
petitioner-applicant’s family so as to find out how the
case of the petitioner is different from any convict as
every convict normally may have family and may have
to support his family. The service rules have been
framed purposefully so that normally convict may not
and should not continue in the service and, therefore,
when legislature itself has framed the rules for taking
action against convict then normally there is no reason
for not allowing the Government to take action
permissible by the service rules. It is necessary that
public post must be occupied by clean persons. If
conviction is stayed so that a tinted, rather a convict
may continue in job during period of appeal, which
according to the petitioner himself may remain
pending for several years and even for decades. Then
by the time appeal of appellant will be decided, the
appellant will care-taker of jail inmates for rest of his
entire service period and may retire from the post and
helpless public will have to see a convict handling
those persons who needs more care.

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19. Unblemished service record and chance of
promotion itself cannot be ground for suspension of
conviction in all the cases. In K.C. Sareen’s case
Hon’ble Apex Court held that the court has the duty to
look into all aspect including the ramifications of
keeping such conviction in abeyance. It is for the
person who is seeking relief from court on the ground
of special reasons to plead and prove existence of
special reasons. We do not find any special reason for
suspension of conviction of the petitioner from the
facts of the case and if look into ramifications of
suspension of conviction of accused we find from the
facts that consequence of suspension of conviction
may damage the public faith and may increase
indiscipline in disciplined service. The petitioner was
Dy. Superintendent of Jail and therefore, was in
employment in disciplined service of the State and
employees of jail service are supposed to maintain the
law and order and poor public goes to them for their
protection and it can be only when public may have
full faith in the officer. The present is not a case where
a poor clerk or even officer is facing the conviction on
the alleged allegation of committing crime because of
some private vengeance and which conviction may not
have affect on his duties. The allegations in the
present case are of very serious and of heinous
nature, which we do not want to narrate here in detail
to avoid any observation, which directly or indirectly
have any bearing on the merit of the appeal preferred
by the petitioner against his conviction, but so far as
prayer for suspension of conviction of the petitioner is
concerned, we do not find any reason much less than
any special reason for suspending the conviction of
the petitioner. The Hon’ble Supreme Court in K.C.
Sareen’s case observed as under:

“When a public servant is found guilty of
corruption after a judicial adjudicatory process
conducted by a court of law, judiciousness
demands that he should be treated as corrupt
until he is exonerated by a superior court. The
mere fact that an appellate or revisional forum
has decided to entertain his challenge and to got
into the issues and findings made against such
public servants once again should not even
temporarily absolve him from such findings. If
such a public servant becomes entitled to hold
public office and to continue to do official acts
until he is judicially absolved from such findings
by reason of suspension of the order of
conviction, it is public interest which suffers and
sometimes, even irreparably….”

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20. In the K.C. Sareen’s case (supra) allegation was of
corruption while holding the post and in the present
case, allegation is on an officer now holding the post
of Superintendent of Jail and the Om Prakash vs State
Of Rajasthan on 25 March, 2008 conviction is for
committing murder of a accused lodged in jail and
allegation is not only murder but brutal murder and
after in-human torture. As a convict for charge of
corruption is not entitled to hold the post even during
challenge to his conviction, the jail officer is normally
not entitled to continue on post during his challenge to
conviction and until no special reasons are there.

21. In view of the above, the petitioner is not entitled
to order for suspension or stay of his conviction. The
petition is dismissed.”

We have perused another judgment cited by the learned

Public Prosecutor of the Hon’ble Supreme Court in the case of

Shyam Narain Pandey Vs. State of Uttar Pradesh reported in 2014

(Suppl.) Cr.L.R. (SC) 192 in which while considering the similar

controversy, the Hon’ble Supreme Court dismissed the appeal filed

by the applicant Shyam Narain Pandey and observed that ground

of deprivation of the sources of livelihood cannot be treated a

valid ground to stay the conviction unless the accused is otherwise

declared innocent in appeal and held that in very rare and

exceptional case, the conviction can be stayed. The paras nos.13

and 14 of the said judgment are as under:

“13. In the light of the principles stated above, the
contention that the appellant will be deprived of his
source of livelihood if the conviction is not stayed
cannot be appreciated. For the appellant, it is a matter
of deprivation of livelihood but he is convicted for
deprivation of life of another person. Until he is
otherwise declared innocent in appeal, the stain
stands. The High Court has discussed in detail the
background of the appellant, the nature of the crime,
manner in which it was committed, etc. and has rightly
held that it is not a very rare and exceptional case for
staying the conviction.

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14. We do not, thus, find any merit in the appeal and
the same is accordingly dismissed. However, we make
it clear that the observations in this judgment are only
for the purpose of this order and they shall have no
bearing while hearing the appeal.”

After perusing the aforesaid judgments cited by both the

parties coupled with the findings of the trial court in impugned

judgment, we considered the prayer of the applicants to tay the

conviction. The main ground raised by the applicants for the

prayer to stay the conviction that both the applicants are brilliant

students and if the conviction will not be stayed, then they will

lose their livelihood, so also, their career will be effected

adversely. In our opinion, the judgment of the Hon’ble Supreme

Court in the case of Shyam Narain Pandey (supra) squarely

covers the controversy in which the Hon’ble Supreme Court held

that although there is discretion of the appellate court to stay the

conviction but in very rare case, while recording special reasons in

the order. In case of Shyam Narain Pandey (supra), similar

grounds were taken by the applicants to stay the conviction, but

Hon’ble Supreme Court in para no.13 held that conviction cannot

be stayed because applicant has been convicted for deprivation of

life of another person and claiming livelihood on the ground of

deprivation.

Therefore, we are of the opinion that for the purpose of

deciding application to stay the conviction evidence cannot be

assessed so as to ascertain whether the applicants are guilty for

the offence or not because it is not permissible in law to stay the

conviction only on the ground that applicants will lose their
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livelihood and service. In the light of the above legal position, we

hold that loss of job cannot be treated a valid consideration for

grant of rare remedy of staying the order of conviction.

Consequently, the instant application is hereby dismissed.

(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J.

cpgoyal/ps

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