Mohammad Farhan vs State Of Madhya Pradesh

Heard on I.A. No.10531/2018, repeat (fourth) application for suspension of sentence and grant of bail on behalf of appellantMohammad Farhan.

First application was dismissed as withdrawn. Second application was rejected after considering merits of the case.

The appellant has been convicted for commission of offence punishable under Section 302 of IPC, Section 25(1-B) and 27 of Arms Act and awarded

life imprisonment, RI for three years and RI for three years respectively alongwith fine of Rs. 1000/- each count.

Learned counsel for the appellant has submitted that the conviction of the appellant is based on circumstantial evidence i.e. recovery of pistol and

blood stains on the jeans, which was alleged to be of the appellant. Witnesses of recovery of jeans, which is alleged to be of appellant, have turned

hostile. The pistol was recovered from an open place. These facts have not been considered while considering the earlier application. Hence, the

present application is maintainable and the appellant be granted suspension of sentence. Learned counsel placed reliance on two judgments of the

Apex Court i.e. Kalyan Chandra Sarkar vs Rajesh Ranjan @ Pappu Yadav and anotherreported in (2004) 7 SCC 528andKalyan Chandra Sarkar vs

Rajesh Ranjan @ Pappu Yadav and another reported in (2005) 2 SCC 42 to substantiate his submissions that under certain circumstances subsequent

application is maintainable.

Learned counsel for the State has submitted that earlier application was dismissed considering merits of the case. There is sufficient evidence against

the appellant. Hence, the application be dismissed.

We have perused the objection and the record.

Allegation against the appellant is that he had killed his brother. The prosecution witnesses turned hostile. Even the seizure witnesses of recovery of

jeans, which is said to be of appellant, i.e. PW-3 Arman and PW-7 Mohammad Khalid turned hostile. They denied the fact that any recovery was

made on the memorandum of the appellant. PW-18 is the Investigating Officer. He deposed that before Armanullah and Mohammad Khalid, a blue

jeans pant and white T-shirt was seized vide seizure memo Ex.P5. Revolver (mouser) was also seized vide same seizure memo Ex.P5. PW-4 Smt.

Bilkisjahan deposed that the deceased killed him self.

This is a fact that earlier application was dismissed on merits. The Hon'ble Supreme Court in the case of Kalyan Chandra Sarkar vs

Rajesh Ranjan alias Pappu Yadav and another, reported in (2004) 7 SCC 528 has held as under in regard to law of consideration of subsequent

application for suspension of sentence:

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 merit 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. It

is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are,

(a) The nature of accusation and the severity ofpunishment in case of conviction and the nature of supporting evidence;

(b) Reasonable apprehension of tampering of thewitness or apprehension of threat to the complainant;

(c) Prima facie satisfaction of the Court in support of the charge; (See Ram Govind Upadhyay Vs. Sudarshan Singh and others (2002 (3) SCC 598)

and Puran Vs. Rambilas and another (2001 (6) SCC 338).

In regard to cases where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for

grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that

bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail

should be granted. (See Ram Govind Upadhyay, supra).

The Hon'ble Supreme Court further in the case of Kalyan Chandra Sarkar vs Rajesh Ranjan Alias Pappu Yadav and another reported in (2005) 2

SCC 42 has held as under in regard to grant of bail when earlier application was rejected:

The decisions given by a superior forum, undoubtedly, is binding on the subordinate fora on the same issue even in bail matters unless of course,

there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail

application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which

requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has

been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused

that in view the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail

applications even on a ground already rejected by courts earlier including the Apex Court of the country.

The Hon'ble Apex Court in the aforesaid judgments held that subsequent application is maintainable if there is a change in the fact, situation or any

law.

The Hon'ble Supreme Court in the case of Tomaso Bruno and another vs State of Uttar Pradesh reported in (2015) 7 SCC 178 has held as under in

regard to conviction on the basis of circumstantial evidence:

In every case based upon circumstantial evidence, in this case as well, the question that needs to be determined is whether the circumstances relied

upon by the prosecution are proved by reliable and cogent evidence and whether all the links in the chain of circumstance are complete so as to rule

out the possibility of innocence of the accused. Conviction can be based solely on the circumstantial evidence but it should be tested on the touchstone

of the law relating to circumstantial evidence.

It is well settled principle of law that circumstantial evidence is a weak type of evidence. The witnesses of seizure of jeans pant, which is alleged to be

of the appellant, turned hostile. I.O. PW-18 did not mention in his evidence that when he seized the jeans. There was blood spots on the jeans. These

facts have not been considered in earlier order. Apart from this, the revolver was seized from the open place. Prosecution has not taken any finger

prints on the revolver. So it cannot be sustained that revolver was used during the crime.

In view of aforesaid changed circumstances and the period of detention of the appellant, without commenting on the merits of the case, the application

is allowed and subject to depositing the fine amount, if already not deposited, remaining jail sentence of the appellant is hereby suspended.

It is directed that on furnishing a personal bond of Rs.50,000/along with one solvent surety of like amount to the satisfaction of trial Court, the appellant

Mohammad Farhan be released on bail with a further direction to appear before the Registry of this Court on 07.01.2019 and on such other dates as

are fixed by the office in this regard till disposal of this appeal. C. C. as per rules.