Rajasthan High Court
Kesharmal S/O Ghisaram B/C Balai vs State Of Rajasthan Through Pp on 18 August, 2021
Bench: Sandeep Mehta, Rameshwar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Misc. Suspension of Sentence Application
No.50/2020
in
D.B. Criminal Appeal No. 19/2019
1. Kesharmal S/o Ghisaram, aged about 65 years,
2. Lalaram @ Tarachand S/o Kesharmal, aged about 25 years,
Both by caste Balai, R/o Meenda, Police Station Maroth, District
Nagaur
At present confined at Central Jail, Jaipur
----Appellant
Versus
State Of Rajasthan, Through P.P.
----Respondent
For Appellant(s) : Mr. Abhishek Vashishtha, on behalf of
Mr. Rajesh Goswami
For Respondent(s) : Ms. Rekha Madnani, Additional
Government Advocate
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE RAMESHWAR VYAS
Order
18/08/2021
The instant application for suspension of sentence
under Section 389 CrPC is preferred on behalf of the appellant-
applicants (1) Kesharamal S/o Ghisaram and (2) Lalaram @
Tarachand S/o Keharmal, who have been convicted and sentenced
to life imprisonment for the offence under Section 302 read with
Section 34 IPC vide the judgment dated 17.12.2018 passed by
learned Additional Sessions Judge No.1, Sambhar Lake, District
Jaipur in Sessions Case No.42/2010.
(2 of 5) [SOSA-50/2020]
Learned Public Prosecutor has filed reply to the
application for suspension of sentences.
As per the reply filed by the State, the appellants have
suffered imprisonment of around 3 years in this case.
Heard learned counsel for the appellant, learned Public
Prosecutor and perused the material available on record.
As per the prosecution case, Mst. Prem (P.W.5),
daughter of the appellant No.1 and sister of the appellant No.2,
had contracted love marriage with the deceased Rameshwar.
They had taken a room on rent in the house of Shanti Devi
(P.W.4). The prosecution alleged that on 21.08.2010, the
appellants and co-accused Narendra @ Setharam (who expired
during trial), went to the room, where Prem and Rameshwar were
residing and Rameshwar was stabbed and murdered by the three
accused. The prosecution case was based on ocular testimony of
Smt. Shanti Devi (P.W.4) and Smt. Prem (P.W.5) by way of direct
evidence and the circumstantial evidence in form of the fact that
the appellants and the co-accused were apprehended from the
spot and that when they were arrested, the clothes worn by them
were stained with blood.
Learned counsel for the appellant-applicants
vehemently and fervently urged that the entire prosecution case is
false and fabricated. As a matter of fact, the deceased belonged
to an upper caste, whereas the accused are from Scheduled
Caste. Thus, the grudge, if any, in regard to relationship of
Rameshwar with Prem was being carried by the relatives of
Rameshwar. The appellants took a pertinent defence that
Rameshwar's relatives had come to the room to kill Smt. Prem
and in the melee, the knife blow landed on Rameshwar leading to
(3 of 5) [SOSA-50/2020]
his death. Learned counsel urged that the recovery of knife
allegedly effected by the Investigating Officer at the instance of
the accused is fabricated because the weapon was recovered lying
at the place of incident. The two star prosecution witnesses
Shanti Devi (P.W.4) and Prem (P.W.5) did not support the
prosecution case. Neither the apparel worn by the accused or the
deceased nor the blood stains collected from the place of incident
gave a conclusive result regarding blood group. Hence, the
alleged recovery of blood stained clothes does not incriminate the
accused appellants. It was argued that the appellant appellants
were on bail during the course of trial and did not misuse the
liberty so granted to them. Only one stab wound was found on
the body of the deceased, which was not specifically attributed to
either of the appellants. On these grounds, learned counsel Mr.
Abhishek Vashishtha implored the court to accept the application
and direct release of the appellants on bail during the pendency of
the appeal.
Per contra, learned Additional Government Advocate,
appearing for the State, vehemently and fervently opposed the
submissions advanced by the petitioner's counsel. She contended
that the appellants were bearing a grudge against Rameshwar
because he had married Smt. Prem against their wishes. It is a
case of honour killing. The appellants were apprehended at the
spot. Thus, she implored the court to reject the application for
suspension of sentences filed on behalf of the appellants.
We have given our thoughtful consideration to the
submissions advanced at bar and have gone through the material
available on record.
(4 of 5) [SOSA-50/2020]
Suffice it to say that the prosecution case hinged on the
testimony of Shanti Devi (P.W.4) and Prem (P.W.5), both of whom
did not support the prosecution case and turned hostile. In
addition thereto, it was alleged that the appellants were
apprehended from the spot with their clothes stained with blood of
the deceased. As per the postmortem report (Ex.P/22), a single
stab blow was noticed on the body of the deceased. The blood
stains recovered from the spot, the blood stains found on the
clothes of the deceased and the blood stains allegedly present on
the clothes of the accused gave inconclusive test for blood group.
There is an absolute void in the prosecution case regarding the
aspect as to who was the particular accused who inflicted the fatal
stab blow to the deceased. Whether or not the rigour of Section
106 of the Indian Evidence Act can be applied against the
appellants would be for the court to consider when the appeal is
being finally heard. The appellants have remained in custody for
about two years and eight months. Hearing of the appeal is likely
to consume time. They were on bail during trial and they did not
misuse the liberty so granted to them.
In this background and having regard to the facts and
circumstances of the case, this Court is of the opinion that it is a
fit case for suspending the sentences awarded to the accused
appellants 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,
Sambhar Lake, District Jaipur vide judgment dated 17.12.2018 in
Sessions Case No.42/2010 against the appellant-applicants
(1) Kesharamal S/o Ghisaram and (2) Lalaram @ Tarachand S/o
(5 of 5) [SOSA-50/2020]
Kesharmal, shall remain suspended till final disposal of the
aforesaid appeal and they shall be released on bail, provided each
of them 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 20.09.2021 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.
The learned trial Court shall keep the record of
attendance of the accused-applicants in a separate file. Such file
be registered as Criminal Misc. Case related to original case in
which the accused-applicants 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.
(RAMESHWAR VYAS),J (SANDEEP MEHTA),J
Pramod/4
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