In Rajesh Upadhayay vs. The State of Bihar & Anr. (2025), Supreme Court's Division Bench of Justices Manmohan, N.V. Anjaria delivered a 24-page long judgement dated December 18, 2025, wherein it set aside the 6-page order dated August 28, 2024 authored by Justice Vipul M.Pancholi as part of Division Bench of Patna High Court in Sheo Narayan Mahto @ Sheo Narayan Singh @ Shiv Narayan Singh vs. The State of Bihar (2024).
This appeal was filed in the High Court against the judgment of conviction dated April 3, 2024 and order of sentence dated April 9, 2024 rendered by the Court of Additional District & Sessions Judge 19th, Rohtas at Sasaram in a Sessions Trial of 2022, which arose out of Baghaila P.S. case of 2021where-under and whereby, the Trial Court had convicted and sentenced the accused-appellant to undergo rigorous imprisonment for life and to pay a fine of Rs. 20,000/- for the offences under Sections 302/149 of the Indian Penal Code (IPC), to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs. 500/- for the offences under Sections 342/149 of the IPC, To undergo imprisonment for a term of one year and to pay a fine of Rs. 500/- for the offence under Section 147 of the IPC, to undergo imprisonment for a term of one year and to pay a fine of Rs. 1,000/- for the offences under Sections 504/149 of the IPC, to undergo imprisonment for a term of two year and to pay a fine of Rs. 1,000/- for the offence under Section 148 of the IPC. The appellant was also to undergo rigorous imprisonment for a term of four years and to pay a fine of Rs. 3,000/- for the offence under Section 27 of the Arms Act. All the sentences were directed to run concurrently.
The appellant-original complainant questioned judgment and order dated August 28, 2024 by the High Court, whereby the High Court had suspended the sentence imposed on respondent No.2 and released him on bail during the pendency of the Appeal. Supreme Court's judgment records that the appellant-informant’s father named Krishna Behari Upadhyay was murdered. As per the prosecution story, on December 11, 2021 at about 4.30 p.m., the appellant along with his father Krishna Behari Upadhyay reached at Mahavir temple of the village to light ‘Diya’ and to do ‘Arti’. At that time, the accused persons and the co-villagers Bashishthha Singh alias Munna Singh, Ajit Singh, Naga Kumar, Raghunandan Kumar and Sheo Narayan Mahto- respondent No.2 herein wielding the arms and weapons reached, at the temple. Hurling abuses, all of them surrounded the appellant and his father, telling said Krishna Behari Upadhyay that he was not performing Puja and was engaging in politics. The prosecution case was that that Pandit Krishna Behari Upadhyay tried to close the main gate of the temple, but the accused persons pushed the gate and made a forcible entry inside the temple. Ajit Singh and Raghunandan Kumar caught hold of Krishna Behari Upadhyay and Munna Singh was stated to have fired at him with a revolver. It was stated respondent No.2 also had a country-made pistol with him and that he as well as another Rajesh Mehto alias Rajesh Kumar were instigatively uttering that the Pandit should be killed as he was excessively indulging in politics. Because of gun fire shots, Krishna Behari Upadhyay fell down inside the temple premises and was in a pool of blood. The appellant somehow managed to flee away from the place and informed his family members. Om Prakash Tiwari and Ritesh Mukhia who were the family members, as well as the other co-villagers reached at the place of the offence. They saw Munna Singh, Ajit Kumar, Naga Kumar, Raghunandan Kumar and Rajesh Kumar Mahto alias Rajesh as also respondent No.2-Sheo Narayan Mahto running away in the Eastern direction. Upon being taken to the hospital, Krishna Behari Upadhyay was declared dead. A Fardbeyan was given by the appellant on December 11, 2021, pursuant to which the police registered the First Information Report for the offences under Sections 147, 148, 149, 341, 342, 504, 506, 302 and 120 (B), IPC, and for the offence under Section 27 of the Arms Act against the six persons, including respondent No.2. On February 2, 2022, respondent No.2 surrendered before the Trial Court. Chargesheet was filed on March 28, 2022. The Sessions Court convicted and sentenced respondent No.2. In the appeal proceedings before the High Court, respondent No.2 filed an application praying for suspension of sentence, which was allowed by the High Court and during the pendency of the appeal, respondent No.2 was ordered to be released on bail, suspending the sentence imposed on him.
The Supreme Court observed: "The High Court took the view that the role attributed to respondent No.2 in the incident was of instigation, therefore, the sentence could be suspended....5. There is no escape from the fact that respondent No.2 is convicted under Section 302 read with Section 149, IPC and is imposed with sentence of rigorous imprisonment for life with payment of fine. He is also convicted for the offence under the Arms Act. Respondent No.2 had undergone incarceration so far for three years. His appeal has been awaiting final outcome....5.2. The nature of role played by respondent No.2 was the aspect weighed with the High Court in suspending the sentence awarded to him, the High Court was further persuaded itself to justify the suspension of sentence of respondent No.2 on the ground inter alia that that the FIR was sent to the Magistrate’s court after a gap of three days and that the original copy of the inquest report was not produced. 5.3 At the outset, it may be observed that the High Court was in evident error in resting upon the said two counts. Delay of three days in sending the copy of the FIR to the court of the Magistrate and the non-production of original copy of the inquest report could be said to be illogical considerations applied by the High Court, insofar as those aspects do not have any bearing on the credence of the prosecution’s case which was otherwise established on evidence before the Trial Court. These considerations could not have guided the application of mind of the High Court. 5.4 The High Court was swayed away to observe that the role played by respondent No.2 in the incident was of instigation only. It may be true that respondent No.2 was instigator when the deceased Krishna Behari Upadhyay was shot at, however, it is revealed from the record and the evidence, which the High Court has also accepted and observed, that respondent No.2 also had with him a country-made pistol. 5.5 As stated above, respondent No.2 had pistol with him and he along with Rajesh Kumar and other accused persons had been shouting ‘kill him’ (Pandit Krishna Behari Upadhyay)."
Justice Anjaria who authored the judgment observed:"Section 389 of the Code of Criminal Procedure, 1973 deals with suspension of execution of sentence pending appeal and release of appellant on bail. Conceptually, there is a distinction between bail and suspension of sentence."
He relied on the decision in State of Haryana vs. Hasmat (2004) 6 SCC 175, wherein, the Supreme Court had emphasized that "the Appellate Court is expected to record proper reasons in writing for ordering suspension of execution of sentence or the order appealed, further observed that before suspension of sentence could be ordered, there has to be careful consideration of the relevant aspects. It was stated that order directing suspension of sentence and grant of bail should not be passed as matter of routine."
Justice Anjaria observed: "It is also the settled principle that the Appellate Court should not reappreciate evidence at stage of Section 389, CrPC and try to pick some lacunae or loopholes here and there in the case of prosecution. The presumption of innocence of the accused which is a principle applied in criminal jurisprudence, holds good only until the accused is tried. Once the accused is convicted at the end of the trial, the presumption of innocence does not continue."
He relied on the decision in Shakuntala Shukla vs. State of Uttar Pradesh & Anr.(2021) 20 SCC 818, the Supreme Court was considering the question of grant of bail during pendency of appeal at the instance of appellant who was convicted under Section, 302/149, 201 read with Section 120-B, IPC. It was observed inter alia that the High Court should be slow in granting bail to an accused convicted under Section 302/149, IPC and that once convicted, the presumption of innocence would vanish. ‘The High Court has not at all appreciated and considered the fact that the learned trial court on appreciation of evidence has convicted the accused for the offences under Sections 302/149, 201 r/w 120-BIPC. Once the accused have been convicted by the learned trial court, there shall not be any presumption of innocence thereafter. Therefore, the High Court shall be very slow in granting bail to the accused pending appeal who are convicted for the serious offences punishable under Sections 302/149, 201 r/w 120-B IPC.’ (Para 11).
Justice Anjaria referred to the decision in Omprakash Sahni vs. Jai Shankar Chaudhary & Anr.(2023) 6 SCC 123, Supreme Court reiterated that the benefit of suspension of sentence can be granted only in exceptional cases more particularly so in cases involving conviction under Section 302, IPC. It was further observed that the court should consider the relevant factors like nature of accusation made against the convict, the manner of commission of crime, the gravity of the offence, etc. Distinction was brought out between grant of relief of suspension of sentence in the cases where fixed term sentence is imposed versus the cases where the convicted person is sentenced to life imprisonment, by relying on its own decision in Bhagwan Rama Shinde Gosai vs. State of Gujarat (1999) 4 SCC 421, ‘When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course, if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach.’ (Para 3)
Even in respect of cases where the sentence awarded is for a fixed term, Supreme Court in Chhotelal Yadav v. State of Jharkhand & Anr. (1999) 4 SCC 421 observed that ‘there is a caveat that if there are exceptional circumstances, then the Court may decline to suspend the sentence even in cases where fixed term of sentence is imposed’. It was specifically observed that in respect of plea of suspension of sentence where the sentence is of life imprisonment, such relief has to informed by a gross and apparent error in the judgment of the Trial Court. ‘What could be those exceptional circumstances is not something exhaustive. It is for the Court concerned to look into those exceptional circumstances as may be pointed out by the State. However, the only consideration that should weigh with the appellate court while considering the plea for suspension of sentence of life imprisonment is that the convict should be in a position to point out something very palpable or a very gross error in the judgment of the Trial Court on the basis of which he is able to make good his case that on this ground alone, his appeal deserves to be allowed and he be acquitted.’ (Para 16)
Justice Anjaria underlined that "The dictum that the benefit of suspension of sentence, if at all to be granted in the cases involving conviction under Section 302, IPC, it has to be only in exception cases, is well settled in the catena of judgments. In Vijay Kumar vs. Narender & Ors.(2002) 9 SCC 366 it was observed 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 relevant factors like the nature of accusation made against the accused, the manner in which crime is alleged to have been committed and the seriousness of offence. The view was reiterated in Ramji Prasad v. Rattan Kumar Jaiswal & Anr. (2005) 5 SCC 281, Vasant Tukaram Pawar v. State of Marashtra8, Gomti v. Thakurdas & Ors.9."
Justice Anjaria observed:"7. Looking to the crime scenario in the instant case, the murder of father of complainant-Pundit Krishna Behari Upadhyay took place inside the temple. The appellant complainant (PW2) in terms deposed that respondent No.2 had pistol in his hand. When all the accused persons came, the father of the appellant got frightened, went inside the temple. Thereupon, as is stated, the accused persons, including respondent No.2, pushed the door of the temple and made a forced entry inside, catching hold of Pandit Krishna Behari Upadhyay. The victim fell down having received gun shot injury to be in a pool of blood. As per the evidence appreciated by the Trial court leading to conviction of respondent No.2 under Section 302 read with Section 149, IPC, the firearm was used by Munna Singh whereas respondent No.2 with pistol in his hand was instigating. Munna Singh and respondent No.2 had firearms with them. Respondent No.2 had with him a country-made pistol. 8. It is also to be noted that two of the accused persons are absconding."
Justice Anjaria observed: "9. In the light of the above highlighted principles applied to the facts of the present case and having regard to the relevant considerations such as nature of accusation, events in the crime and even the attribution of role of the appellant, it has to be held that the High Court should not have suspended the sentence, and releases respondent No.2. A clear error was committed by the High Court. The participation and role played by respondent No.2 in the entire commission of offence has to be viewed as grave and could not have been discounted for its seriousness to suspend his sentence imposed upon conviction under Section 302 read with Section 149, IPC. 9.1 It goes without saying that observations in this order are limited to the aspect of suspending the sentence of respondent No.2 and releasing him on bail, not to influence the course of merit of the trial. 10. For foregoing reasons and discussion, impugned judgment and order of the High Court dated 28.08.2024 suspending the sentence of respondent No.2 is hereby set aside. Respondent No.2 Sheo Narayan Mahto to is directed to surrender within ten days. The police authorities shall ensure that respondent No.2 is sent behind the bars within the above time permitted for surrendering. 11. The present appeal is accordingly allowed."
P.S.:Subsequent to the order of the High Court dated August 28, 2024, the last order in the case was passed on May 8, 2025 by Justice Pancholi led bench in Re.: I.A. No.01 of 2025. The 3-page long order reads:"The appellant/applicant has filed the present interlocutory application with a request that the Registry be directed to send back the Trial Court Records of Sessions Trial Nos.45 of 2024 & 381 of 2024, arising out of Baghaila P.S. Case No.96 of 2021 to the Court of learned ADJ-19th Rohtas, Sasaram....3. Learned counsel for the appellant/applicant has pointed out that one of the accused has been convicted by the Trial Court whose trial was separated and, therefore, the said accused has filed the criminal appeal before this Court. This Court called for the Trial Court from the concerned Trial Court and the record is with the Registry of this Court. However, trial of other co-accused, whose trial has been separated, is still pending before the Court and, therefore, the original record is required to be transmitted to the Trial Court. 4. In view of the aforesaid request made by the appellant/applicant, office is directed to keep photo copies of the entire record of Sessions Trial Nos.45 of 2024 and 381 of 2024, arising out of Baghaila P.S. Case No.96 of 2021 and thereafter transmit the original record to the learned ADJ-19th, Rohtas, Sasaram so that the trial of the other co-accused, which has been separated, can be proceeded further. Learned counsel for the appellant/applicant has shown willingness to pay the cost of the same. 5. In view of the aforesaid, Registry is directed to transmit the record of Sessions Trial Nos.45 of 2024 and 381 of 2024, arising out of Baghaila P.S. Case No.96 of 2021 to learned ADJ-19th, Rohtas, Sasaram forthwith by special messenger at the cost of the applicant (informant) of this interlocutory application. 6. Registry is also directed to keep photo copies of the entire record of Sessions Trial Nos.45 of 2024 and 381 of 2024, arising out of Baghaila P.S. Case No.96 of 2021 and thereafter transmit the original record to the learned ADJ-19th, Rohtas, Sasaram so that the proceedings in the present appeal may proceed further. 7. Accordingly, this interlocutory application, i.e., I.A. No.01 of 2025 stands disposed of."
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