Sukhdev vs State
2021 Latest Caselaw 10882 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 27/2021

Sukhdev S/o Shri Laxmichand, Aged About 24 Years, By Caste Nayak, R/o Shiv Mandir, Pabupura, Police Station Ratanada, Jodhpur, Rajasthan. (At Present In Prison At District Jail, Jodhpur).

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

                                                                   ----Respondent


For Petitioner(s)        :     Dr. Nupur Bhati
For Respondent(s)        :     Mr. Farzand Ali GA-cum-AAG
                               Mr. B.R. Bishnoi, AGC.
                               Mr. J.S. Choudhary, Sr. Counsel
                               assisted by Ms. Anu Choudhary



          HON'BLE MR. JUSTICE SANDEEP MEHTA
         HON'BLE MR. JUSTICE MANOJ KUMAR GARG

                                    Order

15/07/2021

The instant application for suspension of sentences has been

preferred by the applicant-appellant under Section 389 Cr.P.C.

seeking release on bail during pendency of the appeal by

suspending the sentences awarded by the learned Additional

Sessions Judge No.2, Jodhpur Metropolitan, Jodhpur in Sessions

Case No.04/2015 vide judgment dated 10.01.2020 whereby the

applicant-appellant has been convicted and sentenced, as below:

Offences Sentences with Fine Default Sentence 302/34 IPC Life Imprisonment with a fine 6 months' R.I.

of Rs.10,000/-

323 IPC One year's RI with a fine of 1 month's R.I.

Rs.1,000/-

341 IPC One month's SI with a fine of 5 days S.I.

Rs.500/-

All the sentences were ordered to run concurrently.

(2 of 5) [SOSA-27/2021]

We have heard and considered the submissions advanced by

learned counsel Dr. Nupur Bhati representing the appellant-

applicant, Shri Farzand Ali learned AAG, Shri B.R. Bishnoi, learned

Public Prosecutor and Shri J.S. Choudhary Sr. Counsel assisted by

Ms. Anu Choudhary representing the complainant and have gone

through the impugned judgment and the material available on

record.

Learned counsel Dr. Nupur Bhati vehemently and fervently

urged that the entire prosecution case is false and fabricated. The

deceased Gopi, as a matter of fact, received injury in a road traffic

accident on 04.11.2014. On the very same day, he was admitted

at the MDM Hospital, Jodhpur. Relatives gave information

regarding Gopi having received injuries in a road accident. Gopi

was got discharged from the MDM Hospital, Jodhpur by his

relatives on 06.11.2014 against medical advice. Gopi was brought

back and was again got admitted to the MDM Hospital, Jodhpur on

20.11.2014. He passed away on 30.11.2014. As per the

Postmortem Report (Ex.P/16), the cause of death of Gopi has

been opined to be septicemic shock. Dr. Bhati urges that the

prosecution theory regarding the accused-appellant and the co-

accused persons having assaulted and caused the fatal injury to

the deceased is totally falsified in view of the medical evidence

which clearly indicates that as a matter of fact, Gopi got injured in

a road accident and the incident has been given colour of assault

and murder because of prior enmity. She further contended that

documents pertaining to admission of Gopi in the hospital at

Ahemdabad or his re-admission to the MDM Hospital, Jodhpur

(3 of 5) [SOSA-27/2021]

were not proved by the prosecution during trial. Thus, manifestly

even if the allegations of the prosecution eye-witnesses Ankit PW-

4 and Mahendra PW-5 are accepted then too, the offence if any

would not travel to beyond Section 323/325 of the IPC. She

submits that the appellant herein is in custody for the last nearly

six and half years. Hearing of the appeal is likely to consume time.

On these grounds, Dr. Bhati sought bail for the appellant.

Learned Public Prosecutor and the learned counsel

representing the complainant vehemently and fervently opposed

the submissions advanced by the appellant's counsel and urged

that even in the postmortem report (Ex.P/16), it is clearly

mentioned that Gopi was got admitted at the Hospital in

Ahmedabad where he was subjected to cranial surgery. The eye-

witnesses Ankit PW-4 and Mahendra PW-5 have categorically

stated that the appellant herein and Suraj assaulted Gopi by

dangerous weapons. They thus urged that the appellant does not

deserve indulgence of bail in this case.

We have given our thoughtful consideration to the

submissions advanced at the Bar and have gone through the

impugned judgment as well as the record.

Suffice it to say that the alleged incident of assault on Gopi

took place on 04.11.2014 at 6:30 p.m. The FIR (Ex.P/3) came to

be registered by Vinod, father of the deceased, at the Police

Station Ratanada on 05.11.2014 wherein, omnibus allegations

were levelled against the appellant herein and the co-accused

persons namely Suraj and Pramod. Gopi was got admitted to the

MDM Hospital, Jodhpur on 04.11.2014 at about 9:00 p.m. and in

the patient history, which has been recorded in the bed-head

(4 of 5) [SOSA-27/2021]

ticket (Ex.D/1) is RTA i.e. 'Road Traffic Accident'. The relatives of

Gopi got him discharged from the hospital against medical advice

on 06.11.2014 and he was allegedly taken for treatment to

Ahmedabad. However, no documents pertaining to the treatment

of Gopi at Ahemdabad were proved during trial. Even in the bed-

head ticket (Ex.D/1), the nature or dimension of the injuries

allegedly caused to Gopi were not mentioned. Gopi was brought

back to Jodhpur on 20.11.2014 and was got admitted to the MDM

Hospital, Jodhpur. He expired on 30.11.2014 but the treatment

documents even for this period were not proved on record. The

Medical Jurist, who conducted postmortem upon the body of the

deceased namely Dr. Vijay Sharma PW-9, clearly stated that

cause of death of Gopi was septicemic shock.

In this background, we are of the opinion that the appellant

does have available to him strong grounds for assailing the

impugned judgment. He has been in custody since his arrest i.e.

from 05.11.2014. Hearing of the appeal is unlikely in the near

future.

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 Additional Sessions Judge No.2, Jodhpur

Metropolitan, Jodhpur vide judgment dated 10.01.2020 in

Sessions Case No.04/2015 against the appellant-applicant

Sukhdev S/o Shri Laxmichand, 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.80,000/-

with two sureties of Rs.40,000/- each to the satisfaction of the

learned trial Judge for his appearance in this court on 16.08.2021

(5 of 5) [SOSA-27/2021]

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.

                                   (MANOJ KUMAR GARG),J                                   (SANDEEP MEHTA),J


                                    43-Mamta/ Tikam/-









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