HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 960/2022 Gendmal S/o Heera Lal Bheel, Aged About 37 Years, Girdiya, P.s. Begun, Teh. Rawatbhata, Dist. Chittorgarh (Raj.). (At Present Lodged In Central Jail, Udaipur).
----Petitioner
Versus
State of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Manish Pitaliya
For Respondent(s) : Mr Anil Joshi, GA-cum-AAG with
Mr. Rajat Chhaparwal
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
01/12/2022
The instant application for suspension of sentences under Section 389 Cr.P.C. has been preferred by appellant-applicant who has been convicted and sentenced as below vide judgment dated 22.09.2022 passed by learned Addl. District & Sessions Judge, Begun, Chittorgarh in Sessions Case No.74/2021 (54/2016):-
Offence Imprisonment Fine Sentence in Under default of fine Section 302 IPC Life imprisonment Rs.5,00,000/- 2 Years' SI 201 IPC 7 Years' SI Rs.5,000/- 1 Year's SI 323 IPC 1 Year's SI Rs.1,000/- 6 Months' SI
All the sentences were ordered to run concurrently. (Downloaded on 01/12/2022 at 11:44:39 PM)
(2 of 5) [SOSA-960/2022] As per the reply submitted by learned Public Prosecutor, the appellant has suffered incarceration of more than six years.
Learned counsel Shri Pitaliya submitted that the case set up in the evidence of the sole prosecution eyewitness Smt. Mangi Bai (PW.1) that the appellant herein was having a motive to murder her husband Shri Bheru Lal is totally unacceptable. As a matter of fact, Smt. Mangi Bai and her husband Bheru Lal, the deceased were bearing grudge against the appellant because Bheru Lal's brother Shri Devi Lal had given up the adoption of their son Kela Ram and had taken the appellant in adoption at a later point of time. Thus, this witness and Shri Bheru Lal were peeved by this fact and bore a grudge that their son would be deprived of Devil Lal's property on account of adoption of the appellant.
Shri Pitaliya further submitted that the alleged incident took place on 13.09.2016 wherein an allegation was levelled that the appellant intentionally collided his motorcycle with the deceased Shri Bherul Lal leading to him receiving the fatal injury. The victim was admitted to the Government Hospital, Udaipur on 14.09.2016 but none of the family members including Smt. Mangi Bai gave any information to the police regarding the intentional collision by the appellant with the intention to kill the deceased. Shri Bheru Lal expired on 19.09.2016 and thereafter, a highly belated FIR (Ex.P/1) came to be submitted by Smt. Mangi Bai on 21.09.2016 wherein an allegation was set out for the first time that the appellant intentionally collided his motorcycle and caused injury to Shri Bheru Lal. Shri Pitaliya urged that both Mangi Bai (PW.1) and his son Kela Ram (PW.2) who was earlier taken in adoption by (Downloaded on 01/12/2022 at 11:44:39 PM) (3 of 5) [SOSA-960/2022] Devi Lal, admitted in their cross-examination that if Devi Lal had not taken Gendmal in adoption, then they would not have proceeded to file this criminal case. He urged that the petitioner was implicated in this case with the sole motive of putting him behind the bars so that Smt. Mangi Bai and Kela Ram could lay their hands on the property of Devi Lal. He submitted that the hearing of the appeal is bound to take a long time. The appellant is in custody for the last more than 6 years. He has strong grounds to assail the impugned judgment. On these submissions, Shri Pitaliya implored the Court to accept the instant application for suspension of sentences and direct enlargement of the appellant on bail during pendency of appeal.
Learned Public Prosecutor, on the other hand, vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that Smt. Mangi Bai (PW.1) is a truthful eyewitness of the incident. Merely because the FIR was lodged with some delay, the entire prosecution case cannot be discarded because Mangi Bai is an illiterate rustic villager and she had no clue that the FIR had to be submitted promptly. The family members were busy tending to the victim who was admitted to the hospital for treatment and thus, the delay in lodging the FIR is well explained.
However, learned Public Prosecutor was not in a position to dispute the fact that Mangi Bai and Kela Ram would be the ones having a grudge against the appellant because Devil Lal, brother of the deceased had taken the appellant Gendmal in adoption by retracting the earlier adoption of Kela Ram. Thus, the appellant (Downloaded on 01/12/2022 at 11:44:39 PM) (4 of 5) [SOSA-960/2022] had not motive to commit the offence. It is also not in dispute that Bheru Lal was admitted to the Government Hospital, Udaipur on 14.09.2016. The incident took place on 13.09.2016. A perusal of the bedhead ticket, though not proved but available on the original record indicates the history which was given out by the patient's relatives to the doctors at the Udaipur Hospital was that the injuries were received in a RTA (Road Traffic Accident) on 13.09.2016 at 3:00 PM at Village Garadia Apparently thus, the delay in lodging the FIR is of great significance and would go to the root of matter. It is clear that the story that the appellant intentionally collided his motorcycle against Shri Bheru Lal was created for the first time after nearly eights days of the incindent. The appellant has been behind the bars for the last more than six years. Hearing of the appeal is bound to consume time. We are, thus of the view that the appellant has available to him strong grounds for assailing the impugned judgment.
Accordingly, 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 learned Addl. District & Sessions Judge, Begun, Chittorgarh vide judgment dated 22.09.2022 in Sessions Case No.74/2021 (54/2016) against the appellant-applicant Gendmal S/o Shri Heera Lal shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail subject to the condition that he shall furnish 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 03.01.2023 and whenever ordered (Downloaded on 01/12/2022 at 11:44:39 PM) (5 of 5) [SOSA-960/2022] 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.
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.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
5-Sudhir Asopa/-
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