Rajasthan High Court
[email protected]@Yogi S/O Ramjilal ... vs State Of Rajasthan on 20 January, 2021
Bench: Prakash Gupta, Chandra Kumar Songara
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Cr. Misc. Suspension of Sentence Application No. 729/2020
In
D.B. Criminal Appeal No. 477/2019
1. Yogesh @ Nitish @ Yogi S/o Ramjilal, R/o Rithoti Thana
Kumher, Distt. Bharatpur.
2. Shivkishan @ Shoukeen S/o Ramsingh, R/o Taranpur P.S.
Malarna Dungar Distt. Sawai Madhopur
(At Present Confined at Distt. Jail Bharatpur)
----Accused Appellants
Versus
State Of Rajasthan, Through P.P.
----Respondent
Connected With
D.B. Cr. Application for Suspension of Sentence No. 261/2020
In
D.B. Criminal Appeal No. 68/2020
1. Shivcharan S/o Meetha Lal Meena, R/o Mahanandpur,
Jalokhara, Police Thana Sadar, Gangapur City, Sawai
Madhopur.
2. Rajesh @ Monu S/o Shiv Charan, R/o Mahanandpur,
Jalokhara, Police Thana Sadar, Gangapur City, Sawai
Madhopur
(At Present Confined At Distt. Jail Bharatpur)
----Accused Appellants
Versus
State Of Rajasthan, Through P.p.
----Respondent
For Appellant(s) : Mr. Abdul Kalam Khan, Advocate
Mr. I.J. Kathuriya
Dr. T.N. Sharma
For complainant : Mr. S.C. Gupta, Advocate
For State Mr. Javed Choudhary, PP
(2 of 5) [CRLAD-477/2019]
HON'BLE MR. JUSTICE PRAKASH GUPTA
HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA
Order
20/01/2021
These two suspension of sentence applications have
been filed under Section 389 CrPC.
Learned counsel for the accused appellants Yogesh @
Nitish @ Yogi and Shivkishan @ Shoukeen submits that out of
total 10 accused persons, 3 have been acquitted and 7 have been
convicted. He further submits that the two persons, against whom
the allegation is for causing fire arm injury, are not before this
Court. He further submits that PW-2 Prem Devi (wife of deceased)
and PW-11 Mukesh Kumar have not given any evidence against
the accused appellants.
Learned counsel for the accused appellants Shiv Charan
and Rajesh @ Monu submit that the date of incident is 9.6.2015,
but the mobile was purchased by accused appellant Shiv Charan
on 27.6.2015 (vide Ex. P-143). The accused persons have been
falsely implicated in this matter, hence their sentence is required
to be suspended.
Learned PP appearing for the State assisted by counsel
for the complainant have opposed the same and submit that the
mobile phones with SIMs were recovered from the possession of
the accused persons on the basis of information furnished by them
in this regard. The accused persons were in constant touch with
one another through mobile phone, which is quite evident from
their call details. From the prosecution evidence, it is well
established that before the date of incident i.e. from 27.5.2015 to
3.6.2015, accused Yogesh stayed in Om Palace Hotel at Gangapur
(3 of 5) [CRLAD-477/2019]
City, for which no explanation was submitted. They further submit
that accused Shivcharan and Rajesh @ Monu were having grudge
in relation to a land, for which civil dispute was going on. For this
purpose, the accused appellants hatched a conspiracy and
committed the murder of Dr. Prakash Chand Agarwal. They further
submit that accused Rajesh @ Monu and Shiv Charan gave
ransom amount to Shiv Kishan @ Shoukin and thereafter accused
Shiv Kishan @ Shoukin deposited the amount in the account of
accused appellant Yogesh @ Nitin @ Yogi. In this way, there was
money transaction amongst the accused appellants and they were
in constant touch with one another through mobile. Even a
country made katta and live cartridge were also recovered from
the accused appellants. In the medical evidence, the Doctor
opined that the injury caused to Prakash Chand was sufficient to
cause death in the ordinary course of nature.
Learned counsel for the complainant further submit that
the accused appellants were not on bail and during trial, they were
in jail. He has drawn the attention of the Court towards the
judgment of the Hon'ble Supreme Court in the case of Preet Pal
Singh Versus State of Uttar Pradesh and another reported in
(2020) 8 Supreme Court Cases 645, and contended that it has
been held by the Hon'ble Apex Court in the aforesaid case that
where there is evidence, that was considered by trial court, it is
not open to court considering application under Section 389 CrPC,
to reassess and / or re-analyze same evidence and take different
view, to suspend execution of sentence and release convict on
bail. He further submits that against the acquittal of three
accused persons by the trial court, the complainant Smt. Prem
Devi has filed a D.B. Cr. Appeal before this Court, which has been
(4 of 5) [CRLAD-477/2019]
admitted and warrant has been issued against the accused
respondents therein. He further submits that findings of the trial
court are based on proper appreciation of evidence and
prosecution has proved its case beyond reasonable doubt, hence
the sentence of the accused appellants should not be suspended.
Heard. Considered.
On a query by this Court, as to why the accused
appellants were in constant touch with one another through
mobile phone, learned counsel for the appellants could not give
any answer.
Taking into consideration the facts and circumstances of
the case and more particularly in view of the fact that the accused
appellants were in constant touch through mobile, which is quite
evident from the call details, recovery of mobile and SIMs from
the accused appellants, their motive as also in view of the
judgment of the Hon'ble Supreme Court in the case of Preet Pal
Singh (supra), we do not deem it just and proper to suspend the
sentence of the accused appellants.
Accordingly, these suspension of sentence applications
filed by the appellants fail and the same are hereby dismissed.
Registry is directed to place a copy of this order in the
connected file.
(CHANDRA KUMAR SONGARA),J (PRAKASH GUPTA),J
DK/11-13
(5 of 5) [CRLAD-477/2019]
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