Nathi Devi W/O Bhagwana Ram vs State Of Rajasthan
2021 Latest Caselaw 3807 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

  D.B. Criminal Misc. Suspension of Sentence Application
                               No. 43/2020

                                        in

               D.B. Criminal Appeal No. 80/2019

Bajrang Singh S/o Bhairu Singh, Resident of Nangli Nirwan,
Police Station Gudha Gaurji, District Jhunjhunu (Rajasthan)

          (Presently lodged in District Jail at Bikaner)

                                                                   ----Appellant
                                    Versus
State Of Rajasthan through Public Prosecutor
                                                                 ----Respondent

For Appellant(s) : Mr. Guru Charan Singh Gill For Respondent(s) : Ms. Alka Bhatnagar, AGA Mr. Virendra Godara, for complainant

HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE RAMESHWAR VYAS

Order

17/08/2021

The appellant has been convicted and sentenced as below

vide Judgment dated 25.01.2019 passed by Additional Sessions

Judge No.1, Jhunjhunu, Rajasthan in Sessions Case No.32/2017

(08/2017) :-

Offence                   Sentences             Fine             Fine   Default
                                                                 sentences
U/s 148 IPC               03 years' SI          Rs.5,000/-       02 month's SI
U/s 323 IPC               03 months' SI Rs.500/-                 15 days' SI
U/s 325/149 IPC           03 years SI           Rs.5,000/-       02 month's SI
U/s 302 IPC               Life                  Rs.10,000/- 03 months' SI
                          Imprisonment


                                          (2 of 7)                 [SOSA-43/2020]

The appellant has moved this application under Section 389

of Cr.P.C. seeking suspension of sentences awarded to him by the

trial court.

Learned Public Prosecutor has filed reply to the application

for suspension of sentences.

We have heard and considered the submissions advanced by

learned counsel for the appellant, learned Public Prosecutor and

learned counsel for the complainant and have gone through the

impugned judgment and original record of the case.

As per the prosecution case set out in the written report

(Ex.P/15), two ladies from the complainant side, namely, Smt.

Santra Devi and Chhoti Devi, were allegedly carrying out farming

operations in their own field when, the accused persons came

there on a Mahindra Tractor. Bajrang Singh (the applicant herein)

was allegedly driving the tractor whereas, Bhagwana Ram Khati,

Mahesh Kumar, Samser Singh and Deep Singh were sitting besides

him. The other accused were on foot. These accused allegedly

ran the tractor over Smt. Santra Devi. Chhoti Devi raised hue and

cry, on which, Rakesh, Naresh, Seetaram and Sandeep came to

the spot. They were also beaten by the assailants. Bajrang Singh

allegedly ran the tractor towards Kishori Lal and collided it with

him, due to which, Kishori Lal also got injured. On the basis of

this report, FIR No. 241/2016 came to be registered at the Police

Station Gudha Gaurji for the offences punishable under Sections

143, 447, 341, 323 & 307 of I.P.C. and investigation was

commenced. Smt. Santara Devi expired on 09.08.2016 while

undergoing treatment. Postmortem was carried out on her dead

body by a Medical Board, which issued the Postmortem Report

(Ex.P/34) opining that the cause of death of Smt. Santara Devi

(3 of 7) [SOSA-43/2020]

was septicemic shock as a result of multiple injuries involving

fractures.

After conducting investigation, the Investigation Officer

proceeded to file a charge-sheet against the appellant and co-

accused for the offences punishable under Sections 148, 447, 323,

325/149, 302 & 302/149 of I.P.C.

After trial, the accused appellant was acquitted from the

charge punishable under Section 447 of I.P.C., but was convicted

and sentenced as above. Hence, this application for SOS.

Learned counsel Mr. Gill representing the accused-appellant

vehemently and fervently urged that the appellant was arrested

on 04.12.2016 and since then he is behind the bars. That it was

the complainant party who had trespassed on the field of the

accused. The appellant herein had been engaged to operate for

carrying out routine farming operations of the field of the other

accused persons and he was having no animosity whatsoever with

the complainant party. He drew the Court's attention to the

statement of the witness Bhagwan Sahay, A.S.I. (P.W. 24), who

admitted that as per the complainant party, the incident took

place in Khasra No. 819, where the houses of the accused

Radheshyam and Bhagwana Ram were existing. The witness also

accepted that Bhagwana Ram and Radheshyam were in possession

of the said field from about 5-6 months before the incident. He

further contended that as a matter of fact, it is the complainant

party, who was the aggressor. They obstructed the members of

the accused party from lawful cultivation of the field in their

possession. The accused-appellant apprehended that he might

get injured in the melee upon which, he tried to escape from the

spot on his tractor, which accidentally collided with Smt. Santara.

(4 of 7) [SOSA-43/2020]

He drew the Court's attention to the charge-sheet (Ex.D/4),

whereby the members of the complainant party were challaned in

the cross-case for the offences under Sections 447, 427 & 323/34

of I.P.C.

Mr. Gill further submitted that the medical jurist, who

examined the injuries of Smt. Santara Devi, did not give any

opinion that the lady had suffered any injury by running over of a

heavy vehicle like tractor. No crush injuries were noticed on the

victim when she was medically examined or when the postmortem

was carried out. Thus, as per Mr. Gill, the prosecution case

regarding the deceased Smt. Santara Devi having been crushed

under the tractor is not corroborated from the medical evidence.

Mr. Gill, thus, urges that the appellant has available to him strong

grounds for assailing impugned judgment. He has remained in

custody for nearly 05 years. Hearing of the appeal is likely to

consume time and thus, he implored the Court to accept the

application for suspension of sentences.

Per contra, learned Public Prosecutor and learned counsel Mr.

Virendra Godara representing the complainant vehemently and

fervently opposed the submissions advanced by the appellant's

counsel. They contended that the appellant intentionally drove his

tractor over the unarmed victim Smt. Santara Devi who was

carrying out farming operations on the field, which was in

possession of the complainant party. They, thus, urged that the

appellant is the principal accused in this case and hence, he does

not deserve indulgence of bail.

We have given our thoughtful consideration to the

submissions advanced by the learned counsel for the parties and

have gone through the material available on record.

(5 of 7) [SOSA-43/2020]

Upon a consideration of the evidence of the prosecution

witnesses, to be specific, P.W. 24 - Bhagwan Sahay, A.S.I., it is

clear that as per the complainant party's version, the incident took

place in Khasra No. 819, which was in possession of the accused

party. Radheshyam and Bhagwana Ram, the co-accused, had

constructed their houses on the land in question, on which, they

were holding possession from previous 5-6 months. In this

background, there is merit in the contention of the appellant's

counsel that the attempt of the victim Smt. Santara Devi and

injured Chhoti Devi in trying to carry out farming operations on

the field in question was not bonafide and rather, amounted to a

trespass.

So far as the appellant is concerned, he is not related to any

of the other co-accused persons in any manner and it appears that

he had been engaged in routine to plough the field with his tractor.

As per the prosecution case, the accused Bhagwana Ram exhorted

to Bajrang Singh to drive the tractor over Smt. Santara Devi and

the accused-appellant acted accordingly. However, on a perusal of

the evidence of the medical jurists, it is apparent that when the

lady was initially admitted at S.M.S. Hospital, Jaipur on

17.06.2016, she was treated conservatively. Dr. Sunita A. Jain

(P.W. 23) did not state that any of the injuries noticed on the body

of the victim could have been caused by running over of a tractor.

The lady was discharged on 23.06.2016 and was re-admitted on

26.06.2016. She was finding difficulty in passing stool and thus,

surgical intervention was done. The doctor admitted in cross-

examination that the lady's condition stabilized on 23.06.2016 and

thus, she was discharged. The lady was subsequently re-admitted

on 19.07.2016 and she passed away by septicemia on

(6 of 7) [SOSA-43/2020]

09.08.2016. Thus, we are of the view that doubt is created on the

prosecution version that lady received the injuries by running over

of a tractor. The possibility of the injuries having been caused due

to accident collision in a melee cannot be ruled out. The appellant

has remained behind the bars for nearly 05 years. Hearing of the

appeal is likely to consume time.

In this background and having regard to the facts and

circumstances of the case, we are inclined to accept the

application for suspension of sentences and to release the

appellant on bail during the pendency of the appeal.

Accordingly, the application for suspension of sentence filed

under Section 389 Cr.P.C. is allowed and it is ordered that the

sentences passed by the learned Additional Sessions Judge No.1,

Jhunjhunu vide judgment dated 25.01.2019 in Sessions Case

No.32/2017 (08/2017) against the appellant-applicant Bajrang

Singh S/o Bhairu Singh, 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 17.09.2021

and whenever ordered to do so till the disposal of the appeal on

the conditions indicated below:-

1. That he will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicant changes the place of residence, he will give in writing his 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.

(7 of 7) [SOSA-43/2020]

The learned trial Court shall keep the record of attendance of

the accused-applicant in a separate file. Such file be registered as

Criminal Misc. Case related to original case in which the accused-

applicant was 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 does not appear before the trial court, the

learned trial Judge shall report the matter to the High Court for

cancellation of bail.

                                   (RAMESHWAR VYAS),J                                         (SANDEEP MEHTA),J




                                   INDER NEBHWANI /1









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