Pankaj Kumar vs State Of Rajasthan
2021 Latest Caselaw 11808 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 276/2021

Pankaj Kumar S/o Sh. Heera Lal, Aged About 26 Years, B/c Jeengar, R/o Sadulpura Road, At Present Dhobi Gali, Abu Road. (Presently Lodged At Sub Jail, Abu Road, Dist. Sirohi).

                                                                  ----Petitioner
                                   Versus
State Of Rajasthan, Through PP
                                                                ----Respondent


For Petitioner(s)         :    Mr. Sikander Khan
For Respondent(s)         :    Mr. N.S. Bhati, PP.
                               Mr. Pradeep Choudhary.



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

                                    Order

29/07/2021

Heard learned counsel representing the parties and perused

the impugned Judgment and the material available on record.

The appellant applicant herein stands convicted and

sentenced as below vide judgment dated 08.04.2019 passed by

the learned Additional Sessions Judge, No.2, Abu Road, District

Sirohi in Sessions Case No.67/2016 (06/2016):

Offences                Sentences                Fine            Fine   Default
                                                                 sentences
Section 460 IPC         10 Years' R.I.           Rs.10,000/- 6 Months' R.I.
Section 302 IPC         Life                     Rs.25,000/- 1 Year's R.I.
                        Imprisonment
Section 380 IPC         5 Years' R.I.            Rs.5,000/-      2 Months' R.I.





                                        (2 of 5)                [SOSA-276/2021]

The appellant was arrested on 10.12.2015 and since then, he

is in custody. As per the prosecution case, the appellant and the

co-accused Praveen, conspired together and trespassed into the

house of Hemant Patil for the purpose of committing robbery. In

the process, they indulged into violence and murdered Hemant

Patil and his servant Reva Ram Choudhary. After discovery of the

dead bodies, a written report was lodged on 08.12.2015 by

Yashwant Patil, brother of the deceased Hemant Patil at the Police

Station Mount Abu, District Sirohi against unknown assailant.

During the course of investigation, the appellant and the co-

accused Praveen were arrested and as is usual, certain recoveries

were shown to have been effected at their instance. Based on

these links in the chain of circumstances, the appellant and the

co-accused have been convicted and sentenced as above.

The case as against the appellant applicant is based on the

recoveries of blood stained clothes, driving licence of the deceased

Hemant Patil and currency notes allegedlylooted from the house.

Learned counsel Shri Sikander Khan drew the Court's attention to

the evidence of Yashwant Patil (PW-8), the first informant, who

admitted in his cross-examination that the police took the driving

licence of the deceased Hemant Patil from him for the purposes of

identification and also some cash amount. Shri Sikander Khan

submits that apparently, the recovery of the driving licence of the

deceased, which has been attributed to the appellant herein, is

fabricated. He also urged that the I.O. claimed to have recovered

broken scissors, a helmet, a knife and a black coloured bag

containing implements for making sofas from the place of incident

and it was claimed that the appellant herein had procured these

very articles from the witness Mukesh @ Raju (PW-16). Shri Khan

(3 of 5) [SOSA-276/2021]

drew the Court's attention to the evidence of Mukesh @ Raju and

pointed out that this witness admitted in his examination-in-chief

that he identified these articles at the Police Station on

09.12.2015. Shri Khan urged that these articles were allegedly

seized from the spot on 08.12.2015 and were sealed by the I.O.

In such circumstance, when the witness Mukesh @ Raju clearly

stated that the articles were shown to him in police station in an

open condition on 09.12.2015, the entire sequence of recoveries

becomes tainted. Shri Khan further urged that when the dead

body of Hemant Patil was inspected, gold ornaments were found

present thereupon. He thus urged that the prosecution theory

regarding the murder having been committed for gain is totally

falsified. Shri Khan further submitted that the appellant herein is

in custody from the year 2015 and hearing of the appeal is

unlikely in future. As per him, the appellant has available to him

significant grounds for assailing the impugned Judgment. On these

grounds, Shri Khan craved indulgence of bail for the appellant,

during the pendency of the appeal.

Per contra, learned Public Prosecutor and the learned counsel

Shri Pradeep Choudhary representing the complainant, have

vehemently and fervently opposed the submissions advanced by

the appellant's counsel.

We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

impugned Judgment and the record.

Manifestly, on appreciating the evidence available on record

on the anvil of the arguments advanced before us, we are of the

view that there are significant loopholes in the prosecution case

regarding the alleged recoveries. It is not in dispute that the entire

(4 of 5) [SOSA-276/2021]

prosecution case is based on circumstantial evidence only. As the

recoveries form a substantial part of the links in the chain of

circumstance relied upon by the prosecution and since, there exist

strong indicators suggesting tainted investigation, we are of the

opinion that the appellant, who is in custody from the year 2015,

deserves indulgence of bail during pendency of the appeal.

We make it clear that the observations made herein above

are restricted to the decision of the application for suspension of

sentences and shall not prejudice the outcome of the appeal in

any manner.

As an upshot of the above discussion, the instant

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, No.2, Abu Road, District

Sirohi, vide judgment dated 08.04.2019 in Sessions Case

No.67/2016 (06/2016) against the appellant-applicant Pankaj

Kumar, 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 01.09.2021 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-276/2021]

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

                                    26-Tikam/-









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