Rajasthan High Court - Jodhpur
Sanjay Singh vs State Of Rajasthan on 17 September, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:37852-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 359/2023
Sanjay Singh S/o Sh. Maanpal Singh, Aged About 40 Years,
H.no. 132 (Actual 135), Labour Colony, Purani Abadi,
Sriganganagar, Dist. Sriganganagar, Raj. (Presently Lodged At
Central Jail, Bikaner).
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Chaitanya Gahlot assisted by
Ms. Vandana Prajapati &
Mr. Amit Kumar Purohit.
For Respondent(s) : Mr. C.S. Ojha, PP.
Mr. Vishan Das Vaishnav.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN Order Reserved on 09/09/2024 Pronounced on 17/09/2024
1. The applicant-appellant herein has been convicted and sentenced as below vide the impugned judgment of conviction and order of sentence dated 16.12.2022 passed by the learned Additional Sessions Judge No.2, Sri Ganganagar in Sessions Case No.23/2021 (C.I.S. No.85/2016):
Conviction Sentence Fine
under Section
302 IPC Life imprisonment Rs.10,000/-, in default of
which, to undergo further 6
months' R.I.
3/25 Arms Act One Year's S.I. Rs.1000/-, in default of
which, to undergo further
One Month's S.I.
27 Arms Act Three Years' S.I. Rs.1000/-, in default of
which, to undergo further
One Month's S.I.
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2. The applicant-appellant has preferred the instant application under Section 389(2) Cr.P.C. seeking suspension of sentence, during pendency of the appeal and for release on bail.
3. Learned counsel for the applicant-appellant submitted that as per the eyewitness PW.10- Veena Sharma, she dropped the deceased at the place of incident, and left immediately; in the given circumstances, the version to the effect of her returning back to the place of incident suddenly at the relevant time, renders her testimony as unreliable, thus, she could not have been considered as an eyewitness to the incident in question. Thus, as per learned counsel, there was no eyewitness in the present case.
3.1. It was further submitted that the incident had happened in a Gymnasium, but there is no recovery of CCTV footage regarding the incident in question, nor any material has been produced by the prosecution during the trial, which could show any motive on the part of the applicant-appellant to cause murder of the deceased.
3.2. It was also submitted that PW.1, PW.2, PW.4, PW.5, PW.6, PW.7, PW.9, PW.12, PW.13 have turned hostile during the trial, and hence, did not support the prosecution story. It was futher submitted that the applicant-appellant is behind the bars, for last about 7 years.
3.3. It was further submitted that the other similarly situated co- accused i.e Karan Singh and Anil Kumar have already been acquitted by the learned Trial Court, but on the similar set of facts, (Downloaded on 18/09/2024 at 08:53:19 PM) [2024:RJ-JD:37852-DB] (3 of 6) [SOSA-359/2023] circumstances and evidence, the conviction of the present applicant-appellant was recorded by the learned Trial Court in the impugned judgment.
3.4. It was also submitted that the applicant-appellant, though is having criminal antecedents of 12 cases, in total, but in 8 out of them, the applicant-appellant has already been acquitted on merit, while in remaining 4 cases, he has been acquitted on the basis of compromise.
4. On the other hand, learned Public Prosecutor as well as learned counsel for the complainant have opposed the instant application for suspension of sentence.
4.1. It was submitted that the applicant-appellant hatched a criminal conspiracy in collusion with the other co-accused to cause murder of the deceased, and his involvement in the crime in question was proved by the prosecution beyond all reasonable doubts, before the learned Trial Court.
4.2. It was further submitted that the applicant-appellant is a habitual offender and remained involved continuously in criminal activities from 1995 to 2014. It was also submitted that the applicant-appellant is having criminal antecedents of total 12 criminal cases under the various provisions of IPC, Arms Act and Excise Act.
4.3. It was further submitted that there was an eye witness (PW.10) to the incident in question and she completely supported the prosecution case. It was also submitted that if the applicant- appellant is released on bail, there is every likelihood that he may indulge himself again in the criminal activities, and therefore, the (Downloaded on 18/09/2024 at 08:53:19 PM) [2024:RJ-JD:37852-DB] (4 of 6) [SOSA-359/2023] present suspension of the sentence application deserves to be dismissed.
5. Heard learned counsel for the parties as well as perused the record of the case.
6. This Court observes that the impugned judgment of conviction and order of sentence was passed by the learned Trial Court, convicting and sentencing the present applicant-appellant, as above.
7. This Court further observes that eyewitness PW.10-Veena Sharma (mother of deceased) stated in her testimony, that she saw that the applicant-appellant with other accused persons, who at the relevant time, opened firing by pistol on the deceased and caused murder of the deceased, and the said version was consistent throughout i.e. in FIR (Ex.P/9), and in statements under Sections 161 & 164 Cr.P.C., qua the involvement of the applicant-appellant in the crime in question.
8. This Court also observes that the police authority recovered a 12 Bore Desi Katta (country-made pistol) vide Ex.P/44 on the basis of the information given by the applicant-appellant himself. This Court further observes that in the body of the deceased, "lead slug piece four wads D/1, D/2, D/3 and twenty two damaged lead pellets from packet "A" were found, which normally, can be fired from the aforesaid country-made pistol. This Court also observes that the said pistol pallets (Chharre) were recovered from the body of the deceased.
9. This Court further observes that the applicant-appellant has been involved in criminal activities since 1995 and has criminal (Downloaded on 18/09/2024 at 08:53:19 PM) [2024:RJ-JD:37852-DB] (5 of 6) [SOSA-359/2023] antecedents of total 12 cases to his discredit; though in all those cases, he was acquitted, but when seen in the present perspective, it is clear that the murder in question was completely pre-planned, and an instance of organized crime on part of the applicant-appellant. This Court also observes that the applicant- appellant was involved in committing a heinous offence i.e. brutal murder of the deceased.
10. This Court further observes that apart from the above, the custody period of the applicant-appellant is not sufficient so as to entitle him for indulgence of suspension of sentence, at this stage.
11. This Court is conscious of the precedent law laid down by the Hon'ble Apex Court in the case of Shivani Tyagi Vs. State of U.P. & Anr. (Criminal Appeal Nos.1957-1961 of 2024, decided on 05.04.2024), wherein it has been held that for exercise of the powers under Section 389 Cr.P.C., it would not be appropriate to consider only the factum of sufferance of incarceration for a particular period, rather the other relevant factors, including the gravity of the offence, also have to be taken into account.
12. Thus, in view of the above and taking into consideration the overall facts and circumstances of the case, this Court is not inclined to suspend the sentence awarded to the applicant- appellant in this case.
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13. Consequently the present application for suspension of sentence under Section 389(2) Cr.P.C. is dismissed at this stage. (MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J SKant/-
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