Mahendra S/O Shri Rambharosi Lal vs State Of Rajasthan
2021 Latest Caselaw 1154 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

         D.B. Criminal Misc. Bail Application No.883/2020

                                       IN

               D.B. Criminal Appeal No. 200/2020

Mahendra S/o Shri Rambharosi Lal, Resident Of Village Sitod,
P.S. Bamanwas, District Sawaimadhopur At Present Plot No. A-2,
Prem Vihar, Machha Ki Pipli, P.S. Kanota, District Jaipur (At
Present Central Jail Jaipur)
                                                                  ----Appellant
                                   Versus
State Of Rajasthan, through the P.P.
                                                                ----Respondent

For Appellant(s)         :     Mr. Keshav Kumar Agrawal
For Respondent(s)        :     Mrs. Alka Bhatnagar, PP



          HON'BLE MR. JUSTICE SANDEEP MEHTA
           HON'BLE MR. JUSTICE PRAKASH GUPTA

                                Judgment

03/02/2021

The instant application has been filed under Section 389

Cr.P.C. for suspension of sentences on behalf of the accused

appellant/applicant Mahendra S/o Shri Rambharosi Lal, who has

been convicted and sentenced for the offence under Section(s)

302, 148, 341, 324 & 323/149 of IPC.

Reply to the application for suspension of sentence has been

filed on behalf of respondent-State. As per custody certificate

(Annexure R-2) dated 04.09.2020 available on record, the

appellant/applicant had served custodial period of eight years ten

months & three days as on that date.

(2 of 5) [CRLAD-200/2020]

Thus, by now, actual custodial period suffered by the

appellant/applicant has exceeded to nine years.

Learned counsel for the appellant/applicant pointed out that

conviction of the appellant/applicant has been recorded by the

trial court for the charge under Section 302 IPC simplicitor which

is absolutely illegal. He urges that there is a consistent allegation

of the material prosecution witnesses that the appellant and the

co-accused Arjun who were armed with knives, inflicted injuries

thereof to the deceased Haider. Allegation was also leveled that

Sanju, Kailash, Ramphool and Avinash who were also having

various weapons in their hands caught hold of the victim while the

stab injuries were inflicted to him by the appellant and Arjun.

Attention of the Court is drawn to the statement of the eye-

witness Abid Khan (PW-1), who stated that Avinash, Sanju,

Kailash and Phoolchand caught hold of Haider. Arjun inflicted knife

blow on the chest, whereas Mahendra inflicted knife blow on the

back, as a result whereof Haider fell down. This Court was also

taken through the evidence of the Medical Jurists (PW-16) Dr.

Suman Dutta, who carried out autopsy upon the dead body of

Haider and deposed that three external injuries were noticed on

the dead body. Injury No.1, was stab-wound admeasuring

2.5cmx0.5cm triangular in shape on the lower back, injury No.2

was a Stab/incised wound admeasuring 2cmx0.5cm triangular in

shape on the front of chest, and injury No.3 was also a

stab/incised wound admeasuring 2cmx0.5cm triangular on the

middle of the chest. The medical officer explained that all the

three injuries Nos.1, 2 & 3 were caused by sharp pointed weapon.

Injury No.2 caused on the chest of deceased was fatal whereas

injuries Nos. 1 & 3 were neither individually nor cumulatively

(3 of 5) [CRLAD-200/2020]

sufficient to cause death. In this background learned counsel

contends that as the fatal blow caused to the deceased is

specifically attributed to the co-accused Arjun, conviction of

appellant for the offence under Section 302 IPC simplicitor cannot

be sustained. He submits that the appellant has remained in

custody for a period in excess of nine years. Hearing of the appeal

is likely to consume time. On these submissions, learned counsel

Mr. Keshav Kumar Agrawal representing the appellant/applicant

implored the Court to accept the application for suspension of

sentence and enlarge the appellant/applicant on bail during the

pendency of appeal.

Per contra, learned Pubic Prosecutor has vehemently and

fervently opposed the submissions advanced by counsel for the

appellant/applicant and urged that there is a consistent allegation

of material prosecution witnesses that appellant and co-accused

Arjun who were armed with knives inflicted multiple injuries to the

deceased Haider which assertion is duly corroborated by the

medical evidence. It was submitted that appellant/applicant does

not deserve to be enlarged on bail.

We have considered the submissions advanced at Bar and

also perused the impugned judgment and record. Suffice it to say

that the prosecution case as against the appellant/applicant and

co-accused Arjun has been crystallized in the evidence of the eye

witness PW-1 Shri Abid Khan who pertinently stated that the

injuries on the chest of the deceased Haider were inflicted by

Arjun whereas the appellant/applicant inflicted the knife blow on

his back. The chest injury was proved fatal as per the evidence of

the medical officer whereas the injury on the back of the deceased

was neither opined to be grievous in nature nor the cumulative

(4 of 5) [CRLAD-200/2020]

effect thereof was life threatening. The trial court did not frame a

charge against the appellant/applicant for vicarious liability by

virtue of Section 34/149 IPC. In this background we are of the

opinion that the appellant/applicant has available to him strong

grounds for assailing the impugned judgment of conviction. The

hearing of appeal is likely to consume time. The appellant has

remained in custody for a period in excess of nine years.

Upon a consideration of the arguments advanced on behalf

of the appellant 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

appellant/applicant.

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 Addl. Sessions Judge No.12,

Jaipur Metropolitan, Jaipur vide judgment dated 9.1.2020 in

Sessions Case No.97/2012 against the appellant-applicant

Mahendra S/o Rambharosi Lal, 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.40,000/-

with two sureties of Rs.20,000/- each to the satisfaction of the

learned trial Judge for his appearance in this court on 3.3.2021

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.

(5 of 5) [CRLAD-200/2020]

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.

                                    (PRAKASH GUPTA),J                                              (SANDEEP MEHTA),J

                                   Sandeep Rawat/Rajat-16









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