Jhabarmal Son Of Late Shri ... vs State Of Rajasthan
2021 Latest Caselaw 3936 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

     D.B. Criminal Misc. Suspension of Sentence Application
                           No.61/2021
                                        In
                   D.B. Criminal Appeal No. 2/2021

Jhabarmal Son Of Late Shri Jodharam, Aged About 39 Years,
Resident Of Sangaliya Police Station Losal District Sikar. At
Present In District Jail, Sikar.
                                                                   ----Appellant
                                    Versus
State Of Rajasthan, Through The PP.
                                                                 ----Respondent

For Appellant(s) : Mr. H.S. Sinsinwar with Mr. Rajesh Choudhary.

For Respondent(s) : Mr. Javed Choudhary, PP.

Mr. Vijay Poonia.

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

Order

24/08/2021

The appellant applicant herein stands convicted and

sentenced as below vide judgment dated 16.12.2020 passed by

the learned Additional Sessions Judge No.3, Sikar in Sessions Case

No.408/2014:

Offences                  Sentences             Fine             Fine    Default
                                                                 sentences

Section 302 IPC           Life                  Rs.5,000/-       2 Months' S.I.
                          Imprisonment





                                          (2 of 4)               [SOSA-61/2021]

Learned Public Prosecutor has filed reply to the application

for suspension of sentences.

Learned counsel Shri Sinsinwar urges that as per the

admitted prosecution case, the appellant was standing on the

terrace of his own house. It is the deceased Madanlal who scaled

the wall of the appellant's house and climbed on the terrace

whereafter, the incident took place. He urges that as a matter of

fact, the deceased trespassed on to the house of the appellant,

grappled with him without any reason and in this process, he fell

down from the stairs and received the injuries which proved fatal.

Shri Sinsinwar also pointed out that the trial court, without any

justification, placed reliance on the 161 Cr.P.C. statement (Ex.P/1)

of Jassu Singh, the sole eye-witness who did not support the

prosecution case. As per Shri Sinsinwar, this approach of the trial

court is perverse. He thus urges that the appellant has a strong

case for assailing the impugned Judgment. He submits that the

appellant was on bail during trial and did not misuse the liberty so

granted to him. On these grounds, he prayed that the appellant

deserves to be enlarged on bail during pendency of the appeal.

Per contra, learned Public Prosecutor and Shri Vijay Poonia,

learned counsel representing the complainant, vehemently and

fervently opposed the submissions advanced by the appellant's

counsel. They urged that the witness Rajendra Prasad (PW-4) has

fully supported the prosecution case. The appellant was seen

displaying unnatural behaviour on the terrace of his house.

Madanlal bonafide climbed on the roof in order to pacify the

appellant who gave indiscriminate blows of an iron rod killing

Madanlal instantaneously. They thus urged that the appellant does

not deserve indulgence of bail in this case.

                                           (3 of 4)                 [SOSA-61/2021]



     We    have   given       our     thoughtful         consideration   to   the

submissions   advanced at bar and have gone through                           the

impugned Judgment as well as the record.

Suffice it to say that it is an admitted case of the prosecution

that the appellant herein was standing on the terrace of his house

and the doors were closed from inside. It is the deceased Madanlal

who scaled the wall of the appellant's house and went to the

terrace where the accused was standing. The star prosecution

eye-witness Jassu Singh (PW-1), did not support the prosecution

case and was declared hostile. The trial court, at para No.5 of the

impugned Judgment, placed reliance on the police statement of

the said witness (Ex.P/1) which is totally illegal. There is a serious

contest of the defence that the witness Rajendra Prasad (PW-4)

was not present at the spot.

Be that as it may. Considering the fact that admittedly, the

incident took place in the house of the accused and as it is the

deceased Madanlal who scaled the wall and committed trespass,

there is strong ground to believe that the prosecution witnesses

have suppressed the true genesis of occurrence. The accused

appellant was on bail during trial and he did not misuse the liberty

so granted to him.

In this background, we are of the view that the appellant has

available to him strong grounds so as to assail the impugned

Judgment. Hearing of the appeal is unlikely in the near future.

In this view of the matter and, having regard to the facts

and circumstance as available on record, it is considered just and

proper to suspend the sentences awarded to the appellant, during

pendency of the appeal.

(4 of 4) [SOSA-61/2021]

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 the Additional Sessions

Judge No.3, Sikar, vide judgment dated 16.12.2020 in Sessions

Case No.408/2014 against the appellant-applicant Jhabarmal,

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 27.09.2021 and whenever ordered 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.

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

                                   TIKAM/RAHUL ARYA /9








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