[2023:RJ-JD:35492-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1220/2023 IN D.B. Criminal Appeal No.130/2023 Pinkesh @ Pinkiya S/o Garudiya Kanjar, Aged About 29 Years, r/o Kanjar Basti, Mandawari, Begu P.s., Begu, Dist. Chittorgarh. (Lodged In Dist. Jail, Chittorgarh).
----Petitioner Versus State Of Rajasthan, Through Pp
----Respondent Connected With D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 848/2023 IN D.B. Criminal Appeal No.129/2023 Ashok S/o Sh. Ramrewa, Aged About 28 Years, r/o Kanjar Basti, Mandawari, Begu P.s., Dist. Chittorgarh (Lodged In Dist. Jail, Chittorgarh).
----Petitioner Versus State Of Rajasthan, Through Pp
----Respondent D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 994/2023 IN D.B. Criminal Appeal No.154/2023 Sunil S/o Garudiya, Aged About 36 Years, r/o Kanjar Basti, Mandwari, P.s. Bengu, Dist. Chittorgarh, Raj. (At Present Lodged In Central Jail, Chittorgarh).
----Petitioner Versus State Of Rajasthan, Through Pp
----Respondent (Downloaded on 12/11/2023 at 07:50:29 AM) [2023:RJ-JD:35492-DB] (2 of 5) [SOSA-1220/2023] D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 1135/2023 IN D.B. Criminal Appeal No.172/2023 Birmal @ Nirmal S/o Modu @ Modiya Kanjar, Aged About 32 Years, R/o Kanjar Basti Mandwari Ps Bengu Dist. Chittorgarh Raj. At Present Lodged In Central Jail Chittorgarh
----Petitioner Versus State Of Rajasthan, Through Pp
----Respondent For Petitioner(s) : Mr. Mridul Jain Mr. Anil Vyas For Respondent(s) : Mr. R.R. Chhaparwal, PP HON'BLE MR. JUSTICE VIJAY BISHNOI HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI Order 17/10/2023
1. Heard learned counsel for the parties on the applications for suspension of sentences.
2. The instant applications for suspension of sentences have been preferred by the appellant-applicants, who have been convicted and sentenced by the learned trial court vide judgment dated 14.06.2023 in Sessions Case No.78/2021. The appellant- applicants have been sentenced as under :-
Offence U/s Sentence Fine Sentence in default of
payment of fine
395 IPC Life Rs.50,000/- Additional three years'
Imprisonment S.I.
458 IPC 14 years R.I. Rs.50,000/- Additional three years'
R.I.
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3. Learned counsel for the appellant-applicants have argued that the trial court has grossly erred in sentencing and convicting the appellant-applicants vide impugned judgment. It is submitted that the prosecution has failed to produce cogent and reliable evidence to prove the guilt of the appellant-applicants. It is argued that the trial court has relied upon the evidence of identification whereby the complainant PW-1 Bhanwar Lal has identified the appellant-applicants during the identification parade. Learned counsel for the appellant-applicants has invited our attention towards the statement of PW-1 Bhanwar Lal, who in his cross- examination has specifically admitted that he has identified the appellant-applicants in December, 2016 itself, whereas their identification parade was conducted in January and May, 2017.
4. Learned counsel for the appellant-applicants has also invited our attention towards the statements of PW-11 Nemichand, who is real brother of the complainant PW-1 Bhanwar Lal. The said witness, in his court statement, has specifically stated that the appellant-applicants were brought to the scene of crime by the police in December, 2016 precisely on 01.12.2016. Learned counsel, thus, argued that when the accused persons were brought to the complainant's house, where the alleged robbery has been committed, prior to the identification parade, the said identification is of no use and the trial court has wrongly placed reliance on the said identification.
5. Learned counsel has further submitted that so far as the ornaments recovered at the instance of the appellant-applicants are concerned, though the same have been identified by the (Downloaded on 12/11/2023 at 07:50:29 AM) [2023:RJ-JD:35492-DB] (4 of 5) [SOSA-1220/2023] complainant's wife, but at the same time, they have also admitted that such ornaments are available in the market. Learned counsel, therefore, submitted that the trial court has illegally convicted and sentenced the appellant-applicants without there being sufficient evidence on record. It is also argued that appellant-applicant - Ashok was not identified by the complainant PW-1 Bhanwar Lal during the identification parade and he was on bail during trial.
6. It is also submitted that the appellant-applicants are in jail from last more than seven years and hearing of the appeals is likely to take time. It is, thus, prayed that the sentence awarded to the appellant-applicants by the trial court may kindly be suspended.
7. Learned Public Prosecutor has opposed the applications for suspension of sentences.
8. Taking into consideration the overall facts and circumstances of the case and without making any observation on the merits of the case, we are inclined to suspend the sentences awarded to the appellant-applicants.
9. Accordingly, these applications for suspension of sentences filed under Sec.389 Cr.P.C. are allowed and it is ordered that the substantive sentence passed by the Additional Sessions Judge, Begu, District Chittorgarh vide judgment dated 14.06.2023 in Sessions Case No.78/2021 against appellant-applicants (1) Pinkesh @ Pinkiya S/o Garudiya Kanjar, (2) Ashok S/o Sh. Ramrewa, (3) Sunil S/o Garudiya and (4) Birmal @ Nirmal S/o Modu @ Modiya Kanjar shall remain suspended till final disposal of the appeals, provided they execute a personal bond in (Downloaded on 12/11/2023 at 07:50:29 AM) [2023:RJ-JD:35492-DB] (5 of 5) [SOSA-1220/2023] the sum of Rs.50,000/- each with two sureties of Rs.25,000/- each to the satisfaction of the learned trial judge for their appearance in this Court on 17.11.2023 and whenever ordered to do so, till the disposal of the appeals on the conditions indicated below:-
1. That they will appear before the trial Court in the month of January of every year till the appeal is decided.
2. That if the appellants change the place of residence, they will give in writing 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, they will give in writing their changed address to the trial Court.
10. The learned trial Court shall keep the record of attendance of the accused-appellants in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-appellants 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-appellants do not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.
(RAJENDRA PRAKASH SONI),J (VIJAY BISHNOI),J 47-50-Payal/-
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