Prabhati vs State Of Rajasthan
2021 Latest Caselaw 5797 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
(1) D.B. Criminal Misc Suspension Of Sentence Application
                     (Appeal) No. 495/2020

Bajrang Meghwal @ Bajju S/o Shri Leeluram, Aged About 35
Years, By Caste Meghwal, R/o Dhani Khet Khud Chak 5 J.S.L.,
Rohi Jhansal, Police Station Bhirani, District Hanumangarh (Raj.).
(Presently Lodged At Central Jail Bikaner).
                                                                  ----Petitioner
                                     Versus
State Of Rajasthan, Through P.P.
                                                                ----Respondent
                             Connected With
(2) D.B. Criminal Misc Suspension Of Sentence Application
                     (Appeal) No. 295/2020


1. Prabhati S/o Shri Lal Chand, Aged About 45 Years,
2. Date Ram S/o Shri Lal Chand, Aged About 30 Years,
3. Bittu S/o Shri Lal Chand, Aged About 32 Years,
4. Rajendra @ Ghamiya S/o Shri Prithvi Singh, Aged About 25
Years,
All By Caste Valmiki, R/o Jhansal, Police Station Bhirani, Tehsil
Bhadra, District Hanumangarh (Raj.).
(Lodged In Central Jail Bikaner).
                                     Versus
State Of Rajasthan, Through P.P.
                                                                ----Respondent


For Petitioner(s)        :     Mr.   J.S. Choudhary, Sr. Advocate with
                               Mr.   Pradeep Choudhary,
                               Mr.   Vineet Jain with
                               Mr.   Ashok Kumar.
For Respondent(s)        :     Mr. N.S. Bhati, Public Prosecutor.
                               Mr. Moti Singh
                               Mr. S.S. Gour.



           HON'BLE MR. JUSTICE SANDEEP MEHTA
      HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

                                 ORDER


                    (Downloaded on 02/03/2021 at 09:15:01 PM)
                                           (2 of 13)                 [SOSA-495/2020]

Order pronounced on              :::             26/02/2021
Order reserved on                :::             23/02/2021

BY THE COURT : (PER HON'BLE MEHTA, J.)

1. Heard learned counsel representing the applicants

appellants, learned Public Prosecutor and the learned counsel

representing the complainant. Perused the impugned Judgment as

well as the record.

2. These two applications for suspension of sentences have

been preferred on behalf of the appellants applicants who have

been convicted and sentenced as below vide Judgment dated

10.12.2019 passed by the learned Additional Sessions Judge,

Bhadra, District Hanumangarh in Sessions Case No.20/2015 (CIS

No.20/2015):

Bajrang:

Offences                   Sentences             Fine             Fine   Default
                                                                  sentences
Section 147 IPC            2 Years' R.I.         Rs.500/-         1 Months' S.I.
Section 148 IPC            3 Years' R.I.         Rs.1000/-        2 Months' S.I.
Section 341 IPC            1 Months' R.I. Rs.500/-                5 Days' S.I.
Section 302 IPC            Life         Rs.5,000/-                2 Years' S.I.
                           Imprisonment

Prabhati, Date Ram, Bittu, Rajendra @ Ghamiya Offences Sentences Fine Fine Default sentences Section 147 IPC 2 Years' R.I. Rs.500/- 1 Months' S.I. Section 148 IPC 3 Years' R.I. Rs.1000/- 2 Months' S.I. Section 341 IPC 1 Months' R.I. Rs.500/- 5 Days' S.I. Section 302/149 IPC Life Rs.5,000/- 2 Years' S.I.

Imprisonment Section 3/25 of the 3 Years' R.I. Rs.1,000/- 1 Month's S.I. Arms Act Section 27 of the 3 Years' R.I. Rs.1,000/- 1 Month's S.I.

Arms Act



                                         (3 of 13)                   [SOSA-495/2020]

3. Learned Public Prosecutor was given ample opportunity for

filing reply to the applications for suspension of sentences but he

has chosen not to do so.

4. Shri Moti Singh, learned counsel representing the

complainant has filed an affidavit regarding the previous criminal

conduct of the accused. A counter affidavit of Bhim Singh (brother

of the accused appellant Bajrang Singh) has been filed wherein, it

has been narrated that the accused appellant Bajrang Singh has

been acquitted in most of the criminal cases registered against

him till date.

5. Brief facts relevant and essential for decision of the two

applications for suspension of sentences are narrated herein

below:

6. The complainant Mahesh (PW-1) lodged a written report

(Ex.P/1) to the SHO, Police Station Bhirani, District Hanumangarh

at 03.15 pm. on 27.01.2015 at the Community Health Center,

Hisar alleging inter alia that on the very same day at about 12.15

pm., his father Ramswaroop was proceeding from their home

towards the bus stand. He had reached near the Government

School Jhansal, where Bajrang Meghwal, Chandrabhan, Prabhati,

Dataram, Bittu and Ghamiya, all armed with pistols/firearms, were

waiting from before. They surrounded his father Ramswaroop and

started firing at him. Data Ram fired his weapon and the resultant

gunshot hit his father on the head. Bajrang fired from his weapon

which hit on the abdomen of his father. On hearing the

(4 of 13) [SOSA-495/2020]

commotion, the informant, his brother Rajendra, Kuldeep and

other people rushed to the spot. On seeing them, the accused

persons escaped in the nearby lanes. He and his brothers checked

his father on which, Bajrang exhorted that he would kill all. His

father was taken to the Chhani Bari Hospital. The doctor at Chhani

Bari referred him to the Hisar Hospital for treatment. While they

were on the way, his father passed away. His father had been

attacked by Bajrang and others with firearms due to which, he

expired.

On the basis of this report, an FIR No.10/2015 (Ex.P/2)

came to be registered at the Police Station Bhirani, District

Hanumangarh for the offences under Sections 302, 147, 148, 149

and 341 IPC. After investigation, a charge-sheet was filed against

the accused Prabhati, Data Ram, Bittu and Rajendra @ Ghamiya

for the offences under Sections 302, 341, 147, 148, 149 and 120B

of the IPC and Sections 3/25 and 27 of the Indian Arms Act and

against the accused Bajrang and Lal Chand for the offences under

Sections 302, 147, 148, 149, 120 and 109 of the IPC in the Court

of the Judicial Magistrate, Bhadra, District Hanumangarh from

where, the case was committed to the Court of the Additional

Sessions Judge, Bhadra, District Hanumangarh for trial. Initially,

after hearing the arguments, charges were framed against the

accused persons in terms of the charge-sheet. The matter was

remanded to the trial court for fresh consideration in a revisional

order passed by the High Court whereafter, charges were modified

qua the accused Bajrang and Lal Chand. After culmination of trial,

the learned trial court, convicted and sentenced the accused

persons as above.

(5 of 13) [SOSA-495/2020]

7. Shri J.S. Choudhary, learned Senior Counsel assisted by Shri

Pradeep Choudhary, Advocate representing the accused appellants

Prabhati, Date Ram, Bittu, Rajendra @ Ghamiya and Shri Vineet

Jain, learned counsel representing the accused appellant Bajrang

Meghwal, advanced detailed arguments craving indulgence of bail

to the appellants during pendency of the appeal.

Shri Choudhary urged that the entire prosecution case is

false and fabricated. As a matter of fact, the alleged eye-witnesses

Mahesh (PW-1), Kuldeep (PW-2) and Kaur Singh (PW-6) were not

present at the spot. They are all close relatives of the deceased

and were cooked up as eye-witnesses in order to falsely rope in

the accused appellants because of long standing enmity whereas,

none of the accused persons was present at the spot. In this

regard, firstly, the Court's attention was drawn to the Rojnamcha

Entry (Ex.P/103A) which was entered at the Police Station Bhirani

on 27.01.2015 at 12.40 pm. wherein it is recorded that a

telephonic information was received that Date Ram Valmiki

resident of Jhansal had fired gunshots at Ramswaroop Master

(brother of the person who made the call). On the basis of this

Rojnamcha Entry, it was urged that the allegations set out in the

written report and the evidence of the alleged eye-witnesses, are

totally falsified. The attention of this Court was also drawn to the

statement of the Medical Officer (PW-5) Dr. Rajendra Bhanwaria

who attended to Ramswaroop at the Primary Health Center,

Chhani Bari on 27.01.2015 when he was brought there in an

injured condition. The doctor admitted in his cross-examination

that when he examined the injured, he was shouting that he had

(6 of 13) [SOSA-495/2020]

been shot but he was not naming anyone for the assault. The

injured also told the doctor that none of his family members was

accompanying him. On the strength of this admission of the

Medical Officer, learned counsel Shri Choudhary and Shri Jain

urged that had there been an iota of truth in the statement of the

alleged eye-witnesses Mahesh, Kuldeep and Kaur Singh that the

incident took place in their viewing and that it was they who

carried Ramswaroop to the hospital, then he would not have told

the Medical Officer that none of his family members was

accompanying him. They also urged that names of the assailants

would have been immediately divulged to the police authorities

when telephonic information was given and would also have been

given out to the Medical Officer if there was even an iota of truth

in the prosecution case that the incident was witnesses by the

informant and his companions. Shri Choudhary and Shri Jain also

submitted that the evidence of the material prosecution witnesses

Mahesh, Kuldeep and Kaur Singh is contradicted by the medical

testimony. They urged that in the written report (Ex.P/1), Mahesh

categorically mentioned that the gunshot fired by Bajrang hit

Ramswaroop on the abdomen. Similar allegation was levelled in

the statements of all the three eye-witnesses recorded under

Section 161 Cr.P.C. But, when deposing on oath, these so-called

eye-witnesses modulated their testimony to match the same with

the postmortem report wherein, the entry wound was noticed to

be existing on the back of the deceased whereas, the exit wound

was found on the abdomen. Attention of the Court was also drawn

to the evidence of the Investigating Officer (PW-28) Phoolchand

Sharma who admitted in his cross-examination that after

conducting investigation, he reached to a conclusion that presence

(7 of 13) [SOSA-495/2020]

of Bajrang and Lal Chand was not found established at the spot

and that is why, they were charge-sheeted for the offence under

Section 302 IPC read with Sections 109 and 120B of the IPC. No

firearm was recovered from the accused appellant Bajrang during

investigation. Shri J.S. Choudhary, learned Senior Counsel drew

the Court's attention to the evidence of the Medical Officer (PW-5)

Dr. Rajendra Bhanwaria and urged that the lacerated wound

noticed on the head of the deceased was not opined to be caused

by firearm and thus, the role attributed by the prosecution

witnesses to the accused Date Ram is falsified. They also

submitted that all the appellants other than Date Ram, were on

bail during trial and did not misuse the liberty so granted to them.

On these submissions, Shri Choudhary and Shri Jain urged that it

is a fit case for extending indulgence of bail to the applicants-

appellants during pendency of the appeal.

8. Per contra, learned Public Prosecutor and Shri Moti Singh and

Shri S.S. Gour learned counsel representing the complainant,

vehemently and fervently opposed the submissions advanced by

the appellants' counsel. They urged that the appellant Bajrang has

significant criminal history. The complainant and the accused

parties were daggers-drawn with each other and numerous

criminal cases had been instituted inter-se between them. One

Prabhudayal son of Lalchand was murdered in the year 2014 and

during his cremation, Bajrang had sworn that Prabhudayal was his

brother and that he would take revenge for his murder. For this

offensive attitude, the accused persons were bound-down under

Section 107-116 Cr.P.C. Learned counsel Shri Moti Singh drew the

Court's attention to the proceedings registered against the

(8 of 13) [SOSA-495/2020]

accused party under Section 107-116 Cr.P.C. in the years 2013-

2014. He urged that inspite of being bound-down to maintain

peace and be of good behaviour, the accused formed an unlawful

assembly in order to wreak vengeance; waylaid the unsuspecting

victim Ramswaroop while he was proceeding to the bus stand. He

was surrounded and indiscriminate gunshots were fired at him

which hit his head and abdomen and proved fatal. He thus urged

that if the accused are enlarged on bail during pendency of the

appeal, there is every likelihood that the violence would be

repeated and life of the members of the complainant party would

be put to imminent risk. He therefore urged that the appellants do

not deserve indulgence of bail during pendency of the appeal.

9. A pertinent query was put to Shri Moti Singh as to whether

any incident of violence was reported between the accused party

and the complainant party after the accused had been granted bail

in the present case during trial to which, Shri Moti Singh candidly

conceded that no such incident of violence was in his knowledge.

10. We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

impugned Judgment and the record.

11. Suffice it to say that a pertinent case was set up in the FIR

and in the evidence of the three eye-witnesses Mahesh (PW-1),

Kuldeep (PW-2) and Kaur Singh (PW-6), that the victim Shri

Ramswaroop was proceeding towards the bus stand. He had

reached near the Government school when the accused waylaid

him. All the accused were allegedly armed with firearms. Specific

(9 of 13) [SOSA-495/2020]

allegation was levelled in the FIR that the accused Bajrang fired a

gunshot from his weapon which hit on the abdomen of the

deceased. "बजरंग ने फायर किया जो मेरे पिता िे िेट मे लगा |". This

portion in the FIR was specifically put to the witness Mahesh (PW-

1) in his cross-examination because when postmortem was carried

out, the Medical Board noticed in the postmortem (Ex.P/20) that

the firearm wound on the abdominal area was the exit wound

whereas, the entry wound was on the back. While giving

testimony in the Court, all the three eye-witnesses modulated

their evidence and stated that Bajrang fired gunshot at his father

and the bullet exited from his abdomen. This modulation was

apparently made so as to match the Medical Jurist's opinion.

12. As has been noted above, a telephonic information regarding

the incident was received at the Police Station Bhirani on

07.01.2015 at 12.40 pm. wherein, it was mentioned that Data

Ram @ Date Ram had fired at Ramswaroop, brother of the

informant. In this telephonic information which was recorded in

the Rojnamcha Entry (Ex.P103A), there is no reference to the

name of any other assailant. The evidence of the Medical Officer

(PW-5) may be fruitfully referred to at this stage. In cross-

examination, the Medical Jurist categorically stated that he did not

ask the name of the person who had brought Ramswaroop to the

hospital in an injured condition. Ramswaroop was speaking at that

time. He was shouting that he had been shot at but was not

naming anyone as his assailant. Ramswaroop told the doctor that

no one from his family was accompanying him. This version of the

Medical Officer, does create a doubt on the prosecution story that

Ramswaroop was actually taken to the Hospital by his family

(10 of 13) [SOSA-495/2020]

members viz. the three eye-witnesses Mahesh (PW-1), Kuldeep

(PW-2) and Kaur Singh (PW-6). Three injuries were noticed by the

Medical Board when the postmortem was carried out on the dead

body of Ramswaroop. Injury No.1 was a circular lacerated wound

on the left lumber vertebra region with inverted margins and

blackening. This was an entry wound caused by a firearm. The exit

wound was noticed on the right mid costal margin, the edges

whereof were everted. Pertinent deposition was made by the

Medical Officer that the injury Nos.1 and 2 were respectively the

entry and exit wounds caused by a gunshot. Injury No.3 was a

lacerated wound admeasuring 1X2 cms. bone deep on the left

frontal area of the scalp. The Medical Jurist did not state that this

injury was caused by a gunshot. As per the FIR and the

investigational statements of the three alleged eye-witnesses

Mahesh (PW-1), Kuldeep (PW-2) and Kaur Singh (PW-6), the

gunshot fired by the appellant Bajrang allegedly hit on the

abdomen of the deceased. However, this version was modulated in

the sworn testimony and it was stated that the gunshot fired by

Bajrang hit on the back of Ramswaroop and came out from the

front. Thus, apparently there was an attempt to modulate the

testimony so as corroborate with the medical evidence. The

Investigating Officer (PW-28) Phoolchand Sharma admitted in his

cross-examination that after conducting investigation, he did not

find the presence of the accused Bajrang at the spot and he was

charge-sheeted as being the conspirator.

"यह सही है कि बजरंग व लालचन्द िो ममने धारा 302, 109 व 120 बी भा.्द.स. िे तहत ्दोषी माना तथा शेष चारों मल म जजमान िो ममने घटना िाररत िरने मे ्दोषी माना | बजरंग लालचन्द िकी ममौजज्दगी घटना िे समय अनमसंधान मे नहीं िाई गई |"

(11 of 13) [SOSA-495/2020]

Regarding the contention of the complainant's counsel that

the accused Bajrang has significant criminal antecedents, suffice it

to say that a counter affidavit has been filed on behalf of the said

accused wherein, it is categorically mentioned that out of the total

of nine criminal cases registered against the appellant Bajrang, he

has been acquitted/exonerated in five of them. Three convictions

have been recorded against the appellant Bajrang including the

present one. Only one case was registered against Bajrang after

the present one which relates to an incident of crowd disturbance.

The trial court modified the charge against the accused appellant

Bajrang whereafter, he was granted bail by this Court vide order

dated 23.09.2016 passed in S.B. Criminal Misc. Second Bail

Application No.6837/2016. There is no allegation of the

prosecution that after being enlarged on bail in the present case,

the appellant Bajrang indulged in any criminal activity with any of

the members of the complainant party. So far as the accused Data

Ram is concerned, the allegation against him is of firing a gunshot

which hit the head of the victim Ramswaroop. However, this

allegation is not corroborated by the medical evidence. All the

accused persons other than Data Ram were on bail during the

course of trial and there is no allegation that they misused the

liberty of bail so granted to them. It may be stated here that the

appellant Date Ram @ Data Ram was arrested in this case on

31.01.2015 and since then, he is in custody. No charge for the

offence under the Indian Arms Act was framed against the

accused Bajrang.

13. In this view of the matter and having regard to the overall

facts and circumstances as available on record, we are of the

(12 of 13) [SOSA-495/2020]

opinion that the appellants have available to them strong and

justifiable grounds so as to assail the impugned Judgment of

conviction. Hearing of the appeal is likely to consume time.

14. Making it clear that any of the observations made in this

order shall not be treated prejudicing the merits of the case when

the appeals are finally heard and decided, we are inclined to

accept these applications for suspension of sentences and enlarge

the appellants on bail during pendency of the appeal.

15. Accordingly, the applications for suspension of

sentences filed under Section 389 Cr.P.C. are allowed and it

is ordered that the sentences awarded by the Additional Sessions

Judge, Bhadra, District Hanumangarh, vide judgment dated

10.12.2019 in Sessions Case No.20/2015 (CIS No.20/2015)

against the appellants-applicants (1) Bajrang Meghwal @

Bajju, (2) Prabhati, (3) Date Ram, (4) Bittu and (5)

Rajendra @ Ghamiya, 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.1,00,000/- with two sureties of Rs.50,000/- each to the

satisfaction of the learned trial Judge for their appearance in this

court on 23.03.2021 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

(13 of 13) [SOSA-495/2020]

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.

A copy of this order be placed in each file.

                                   (DEVENDRA KACHHAWAHA),J                                        (SANDEEP MEHTA),J



                                    28 & 29-Tikam Daiya/-









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