Anil Kumar vs State
2021 Latest Caselaw 974 Raj

Citation : 2021 Latest Caselaw 974 Raj
Judgement Date : 14 January, 2021

Rajasthan High Court - Jodhpur

Anil Kumar vs State on 14 January, 2021

Bench: Sandeep Mehta

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc 3rd Suspension Of Sentence Application (Appeal) No. 104/2020

Anil Kumar S/o Shri Mahaveer Prasad (Brahmin), Aged About 32 Years, Ward No. 24, Bhadra, District Hanumangarh (Raj.). (At Present Lodged At Central Jail Bikaner).

----Petitioner Versus State, Through P.p.

                                                                 ----Respondent


For Petitioner(s)        :     Mr. Moti Singh.
For Respondent(s)        :     Mr. Anil Joshi, PP.
                               Mr. Pankaj Kumar Gupta.



            HON'BLE MR. JUSTICE SANDEEP MEHTA
         HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

                                    Order

14/01/2021

Learned Public Prosecutor has chosen not to file reply to this

application for suspension of sentences and proposes to argue the

matter orally.

Heard learned counsel representing the applicant appellant,

learned Public Prosecutor and the learned counsel representing

the complainant. Perused the impugned judgment and the record.

This is third application for suspension of sentences preferred

on behalf of the appellant applicant who has been convicted and

sentenced as below vide judgment dated 17.03.2018 passed by

the learned Additional Sessions Judge, Bhadra, District

Hanumangarh in Sessions Case No.32/2012:

                                        (2 of 5)                 [SOSA-104/2020]


Offences                Sentences             Fine             Fine   Default
                                                               sentences
Section 498A IPC        3 Years' S.I.         Rs.25,000/- 3 Months' S.I.
Section 201 IPC         7 Years' R.I.         Rs.50,000/- 6 Months' S.I.
Section 302             Life                  Rs.1,00,000 1 Years' S.I.
                        Imprisonment /-

Learned counsel Shri Moti Singh points out that the earlier

two applications filed on behalf of the appellant were not

considered and decided on merits. He further submits that the

appellant has remained in custody for almost four years and even

if the prosecution story is accepted to be true on the face of the

record, the offence, if any, would not travel to beyond the offence

under Section 306 IPC for which as well, there is no clinching

evidence available on record. He drew the Court's attention to the

statement of the Medical Jurist (PW-18) Dr. Krishan Kumar and

pointed out that the doctor, who was one of the members of the

Medical Board which conducted autopsy on the dead body of Smt.

Shobhna and issued the postmortem report (Ex.P/65), has given a

categoric opinion that the cause of death of Smt. Shobhna was

hanging and not strangulation. He thus urged that the conviction

of the appellant as recorded by the trial court for the offence

under Section 302 IPC cannot be sustained in light of this stark

finding of the Medical Officer. He further submits that the other

important evidence in form of mails exchanged between the

parties also indicate that the relations between the spouses were

wholesome and there was no such dispute which could have

instigated the appellant to murder his own wife and hence, Shri

Moti Singh craves indulgence of bail for the appellant, during

pendency of the appeal.

                                          (3 of 5)                   [SOSA-104/2020]



     Learned    Public      Prosecutor         and       the     learned    counsel

representing   the   appellant        have       vehemently        and     fervently

opposed the submissions advanced by the appellant's counsel.

They contended that these submissions were taken into account

by this Court while deciding earlier two applications for suspension

of sentences filed on behalf of the appellant. They thus urged that

the exercise sought to be undertaken by this Court would amount

to a review to the earlier orders and hence, the appellant does not

deserve indulgence of bail, during pendency of the appeal.

We have heard and considered the arguments advanced at

bar and have gone through the impugned Judgment and the

material available on record.

Ex-facie, a very important fact which strikes at the root of

the matter is that the accused appellant stands acquitted from the

charge under Section 304B of the IPC by the impugned judgment

itself. This fact by itself would lead to an irrefutable inference that

the prosecution case as against the appellant regarding he, having

harassed or humiliated his wife for demand of dowry soon before

her death, stands negated. The primary evidence required to bring

home the charge under Section 302 of the IPC would be that of

the Medical Officer. However, it is clear that the Medical Officer did

not give any opinion in examination-in-chief that the death of

Smt. Shobhna was homicidal and rather, he categorically admitted

in his cross-examination that the death of Smt. Shobhna was

caused by hanging and was not a result of strangulation.

It may be noted here that the first application for suspension

of sentences filed on behalf of the appellant was dismissed as not

pressed whereas, the second application for suspension of

sentences was dismissed for the reason that there was no change

(4 of 5) [SOSA-104/2020]

in circumstance. Now, the appellant has undergone incarceration

of more than four years. The contentions of the defence counsel

indeed carry merit. The appellant was serving in the Merchant

Navy at the time of the incident and there is no apprehension that

he would abscond if released on bail. Any observations by this

Court on the merits of the case may prejudice the final outcome of

the appeal and hence, without making any comments on the

merits of the case, we are inclined to suspend the sentences

awarded to the appellant, during pendency of the appeal.

Accordingly, the instant third 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, Bhadra, District Hanumangarh, vide

judgment dated 17.03.2018 in Sessions Case No.32/2012 against

the appellant-applicant Anil Kumar S/o Shri Mahaveer Prasad,

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 15.02.2021 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.

(5 of 5) [SOSA-104/2020]

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.