Rajasthan High Court - Jodhpur

Nandu @ Nand Kishore vs State Of Rajasthan on 5 March, 2021

Bench: Sandeep Mehta, Devendra Kachhawaha

(1 of 5) [SOSA-194/2021]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 194/2021

Nandu @ Nand Kishore S/o Sh. Mohan Lal Phulwali, Aged About 40 Years, B/c Sindhi, R/o Baser Colony, Near Garden, Mandsaur (M.p.). (At Present Lodged In District Jail, Banswara).

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


For Petitioner(s)        :     Mr. Mukesh Mehra
For Respondent(s)        :     Mr. Gaurav Singh, PP
                               Mr. Vikram Singh for the complainant



             HON'BLE MR. JUSTICE SANDEEP MEHTA

HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

Order

05/03/2021

Heard learned counsel for the appellant-applicant and

learned Public Prosecutor as well as learned counsel for the

complainant. Perused the material available on record.

Learned Public Prosecutor was given sufficient opportunity

for filing reply to the application for suspension of sentences, but

he has chosen not to do so and proposes to argue the matter

orally.

The appellant-applicant has been convicted and sentenced

vide judgment dated 31.10.2020 passed by the Additional

Sessions Judge, Banswara in Sessions Case No. 464/2014, as

below:

                                           (2 of 5)                     [SOSA-194/2021]


Section 302       r/w        Section Life Imprisonment with fine of
120-B of IPC                         Rs.10,000/- and in default of
                                     payment of fine further 6
                                     months' additional S.I.
Section 201       r/w        Section 7 years' rigorous imprisonment
120-B of IPC                         and Rs.5,000/- of fine and in
                                     default of payment of fine, three
                                     months' additional S.I.

Both the sentences were ordered to run concurrently.

Learned counsel Shri Mehra urges that the entire prosecution

case involving the alleged of murder of one Pradeep Soni is based

on circumstantial evidence which is totally flimsy and

unbelievable, so far as the appellant is concerned. He contented

that the dead body was found near a canal on the Udaipur road on

11.08.2013. The appellant herein and the co-accused persons

were arrested and three witnesses namely Rakesh, Aarif Khan

and Yusuf Khan gave evidence to the Investigating Officer

divulging that the accused persons, i.e. Prateek Bhandari and

Gopal Gwala, were lastly seen together with the deceased Pradeep

Soni. He points out that so far as Gopal Gwala is concerned, the

trial Court has acquitted him from charge under Section 302 IPC

and instead he was convicted for the offence under Section 201

IPC read with Section 120-B of IPC and was awarded seven years'

rigorous imprisonment. He further submits that the witnesses

Rakesh (PW-5), Aarif (PW-6) and Yusuf Khan (PW-7) referred to

supra, when examined on oath, did not support the prosecution

story and were declared hostile. He further points out that the trial

Court did not rely upon the call detail records because neither the

certificate under Section 65-B was procured by the IO nor was any

other evidence collected to affirm that the sims in question were

issued in the name of accused. He urges that the sole witness on

whose testimony, the trial Court has concluded the circumstance

(3 of 5) [SOSA-194/2021]

of last seen against the appellant namely Lokendra (PW-11) has

given totally flimsy and unbelievable evidence. The version of

Lokendra that the accused and the deceased were seen together

on fateful night is primarily based on the information given to him

by the witness Rakesh, who did not support the prosecution case

and thus, the evidence of Lokendra is purely hearsay. He submits

that the appellant was on bail during trial and he did not misuse

the liberty so granted to him. As per Shri Mehra, the appellant has

available strong grounds so as to challenge the impugned

judgment and the hearing of the appeal is likely to consume time,

therefore, the appellant deserves indulgence of bail during

pendency of the appeal.

Per contra, learned Public Prosecutor and the learned counsel

for the complainant have vehemently and fervently opposed the

averments advanced by the appellant's counsel. Learned counsel

for the complainant contended that from the testimony of

Lokendra (PW-11), it is clear that the deceased was lastly seen in

the company of Prateek Bhandari, Gopal Gwala and the appellant

herein. However, the appellant did not offer any explanation as to

how, under what circumstances, Pradeep Soni was found dead

with marks of violence. Thus, he seeks dismissal of the

application for suspension of sentences.

We have given our thougtful consideration to the impugned

judgment and the record. Suffice it to say that upon going

through the entire judgment of the trial Court, it is clear that the

only significant circumstance on the basis of which, the appellant

has been convicted in this case, is that of last seen. PW-11

Lokendra is the only witness who made semblance of an allegation

regarding the appellant having been seen in the company of the

(4 of 5) [SOSA-194/2021]

deceased with the co-accused persons. However, Lokendra

himself categorically stated in his testimony that this information

was provided to him by the witness Rakesh, who did not support

the prosecution case and was declared hostile. The assertion

made by the witness that he himself saw the accused and the

victim together becomes questionable when his cross-examination

is seen.

In this background, we are inclined to suspend the sentences

awarded to the appellant-applicant by the learned trial court.

Accordingly, 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, Banswara in Sessions Case No. 464/2014 (CIS

No.464/2014) against the appellant-applicant Nandu @ Nand

Kishore S/o Mohan Lal Phulwali, 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 06.04.2021

and whenever ordered to do so till the disposal of the appeal on

the conditions indicated below:-

1. That he 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 will give in writing his 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-194/2021]

The learned trial Court shall keep the record of attendance of

the accused-applicant in a separate file. Such file be registered as

Criminal Misc. Case related to original case in which the accused-

applicant was 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 does not appear before the trial court, the

learned trial Judge shall report the matter to the High Court for

cancellation of bail.