HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 276/2021 Pankaj Kumar S/o Sh. Heera Lal, Aged About 26 Years, B/c Jeengar, R/o Sadulpura Road, At Present Dhobi Gali, Abu Road. (Presently Lodged At Sub Jail, Abu Road, Dist. Sirohi).
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Sikander Khan
For Respondent(s) : Mr. N.S. Bhati, PP.
Mr. Pradeep Choudhary.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order
29/07/2021
Heard learned counsel representing the parties and perused the impugned Judgment and the material available on record.
The appellant applicant herein stands convicted and sentenced as below vide judgment dated 08.04.2019 passed by the learned Additional Sessions Judge, No.2, Abu Road, District Sirohi in Sessions Case No.67/2016 (06/2016):
Offences Sentences Fine Fine Default
sentences
Section 460 IPC 10 Years' R.I. Rs.10,000/- 6 Months' R.I.
Section 302 IPC Life Rs.25,000/- 1 Year's R.I.
Imprisonment
Section 380 IPC 5 Years' R.I. Rs.5,000/- 2 Months' R.I.
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The appellant was arrested on 10.12.2015 and since then, he is in custody. As per the prosecution case, the appellant and the co-accused Praveen, conspired together and trespassed into the house of Hemant Patil for the purpose of committing robbery. In the process, they indulged into violence and murdered Hemant Patil and his servant Reva Ram Choudhary. After discovery of the dead bodies, a written report was lodged on 08.12.2015 by Yashwant Patil, brother of the deceased Hemant Patil at the Police Station Mount Abu, District Sirohi against unknown assailant. During the course of investigation, the appellant and the co- accused Praveen were arrested and as is usual, certain recoveries were shown to have been effected at their instance. Based on these links in the chain of circumstances, the appellant and the co-accused have been convicted and sentenced as above.
The case as against the appellant applicant is based on the recoveries of blood stained clothes, driving licence of the deceased Hemant Patil and currency notes allegedlylooted from the house. Learned counsel Shri Sikander Khan drew the Court's attention to the evidence of Yashwant Patil (PW-8), the first informant, who admitted in his cross-examination that the police took the driving licence of the deceased Hemant Patil from him for the purposes of identification and also some cash amount. Shri Sikander Khan submits that apparently, the recovery of the driving licence of the deceased, which has been attributed to the appellant herein, is fabricated. He also urged that the I.O. claimed to have recovered broken scissors, a helmet, a knife and a black coloured bag containing implements for making sofas from the place of incident and it was claimed that the appellant herein had procured these very articles from the witness Mukesh @ Raju (PW-16). Shri Khan (Downloaded on 29/07/2021 at 08:59:57 PM) (3 of 5) [SOSA-276/2021] drew the Court's attention to the evidence of Mukesh @ Raju and pointed out that this witness admitted in his examination-in-chief that he identified these articles at the Police Station on 09.12.2015. Shri Khan urged that these articles were allegedly seized from the spot on 08.12.2015 and were sealed by the I.O. In such circumstance, when the witness Mukesh @ Raju clearly stated that the articles were shown to him in police station in an open condition on 09.12.2015, the entire sequence of recoveries becomes tainted. Shri Khan further urged that when the dead body of Hemant Patil was inspected, gold ornaments were found present thereupon. He thus urged that the prosecution theory regarding the murder having been committed for gain is totally falsified. Shri Khan further submitted that the appellant herein is in custody from the year 2015 and hearing of the appeal is unlikely in future. As per him, the appellant has available to him significant grounds for assailing the impugned Judgment. On these grounds, Shri Khan craved indulgence of bail for the appellant, during the pendency of the appeal.
Per contra, learned Public Prosecutor and the learned counsel Shri Pradeep Choudhary representing the complainant, have vehemently and fervently opposed the submissions advanced by the appellant's counsel.
We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned Judgment and the record.
Manifestly, on appreciating the evidence available on record on the anvil of the arguments advanced before us, we are of the view that there are significant loopholes in the prosecution case regarding the alleged recoveries. It is not in dispute that the entire (Downloaded on 29/07/2021 at 08:59:57 PM) (4 of 5) [SOSA-276/2021] prosecution case is based on circumstantial evidence only. As the recoveries form a substantial part of the links in the chain of circumstance relied upon by the prosecution and since, there exist strong indicators suggesting tainted investigation, we are of the opinion that the appellant, who is in custody from the year 2015, deserves indulgence of bail during pendency of the appeal.
We make it clear that the observations made herein above are restricted to the decision of the application for suspension of sentences and shall not prejudice the outcome of the appeal in any manner.
As an upshot of the above discussion, the instant application for suspension of sentences filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentences passed by the Additional Sessions Judge, No.2, Abu Road, District Sirohi, vide judgment dated 08.04.2019 in Sessions Case No.67/2016 (06/2016) against the appellant-applicant Pankaj Kumar, shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail, provided he executes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 01.09.2021 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-
1. That he/she/they will appear before the trial Court in the month of January of every year till the appeal is decided.
2. That if the applicant(s) changes the place of residence, he/she/they will give in writing his/her/their changed address to the trial Court as well as to the counsel in the High Court.
3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.
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(5 of 5) [SOSA-276/2021] The learned trial Court shall keep the record of attendance of the accused-applicant(s) in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant(s) was/were tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused applicant(s) does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.
(MANOJ KUMAR GARG),J (SANDEEP MEHTA),J
26-Tikam/-
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